Rev.Sfao^fio&by. 


DUKE 

UNIVERSITY 

LIBRARY 


Treasure  %oom 


SELECT 


AMERICAN  SPEECHES 


FORENSIC  AND  PARLIAMENTARY, 


PREFATORY  REMARKS: 


BEING 


A  SEQUEL  TO  DR.  CHAPMAN'S  'SELECT  SPEECHES.' 


VW  V  W  VW  vwvw 


BY  S.  C.  CARPENTER,  ESQ. 


WWW  VW  vwvw 


VOL.  II. 


\ 


PHILADELPHIA: 

PRINTED  FOR  AND  PUBLISHED  BY  J.  W.  CAMPBELL, 

William  Fry,  Printer. 

1815. 


CONTENTS 

OF  THE  SECOND  VOLUME. 


Page 

JVlR.  Madison's  Speech  in  the  House  of  Representatives 

of  the  United  States,  on  the  British  Treaty,  1 

Fisher  Ames's  Speech,  on  the  same  subject,  23 

Governeur  Morris's  Speech  in  the  Senate  of  the  United 

States,  on  the  Judiciary  Establishment,        -  62 

Mr.  Rutledge's  Speech  in  the  House  of  Representatives  of 

the  United  States,  on  the  same  subject,  -  -  89 

Mr.  Bayard's  Speech  on  the  same  subject,  -  -        133 

Mr.  Randolph's  Speech  on  the  same  subject,  -         -  209 

Mr.  Wickham's  Speech  on  the  Trial  of  Aaron  Burr  for  High 

Treason,  -  -- 233 

Mr.  Wirt's  Speech  in  reply  to  the  foregoing,  -  -  279 

Mr.  Hughes's  Speech  on  General  Wilkinson's  Proceedings 

at  New  Orleans,  -         ...  ...        358 

Dr.  Watkins's  Speech  on  the  same  subject,            -         -  379 
Mr.  Ross's  Speech  in  the  Senate  of  the  United  States,  on  his 
Resolutions  relative  to  the  free  Navigation  of  the  Missis- 
sippi,            -         -         -        - 403 

Mr.  Hanson's  Speech  in  the  House  of  Representatives  of  the 

United  States,  on  the  Loan  Bill, 42S 


MR.  MADISON'S  SPEECH, 

IN  A  COMMITTEE  OF  THE   WHOLE  HOUSE,  ON  THE  BRITISH 
TREATY,   15th  APRIL,  1794. 

The  Question — Resolved,  as  the  opinion  of  this  Committee,  that  it 
is  expedient  to  pass  the  laws  necessary  for  carrying  into  effect  the 
Treaty  with  Great  Britain. 


EVERY  man  who  pretends  to  be  tolerably  conversant 
with  the  history  of  America,  is  sufficiently  acquainted 
with  the  origin  and  consequences  of  Mr.  Jay's  mission  to 
St.  James's,  with  the  nature  of  the  treaty  he  effected  with 
the  British  cabinet,  the  exasperation  excited  by  it  in  the 
opposition  party,  and  the  firmness  displayed  by  Wash- 
ington in  ratifying  it. 

"  The  predetermined  hostility  which  this  treaty  was 
doomed  to  encounter  (says  the  illustrious  biographer  of 
Washington)  increased  its  activity  as  the  period  for  de- 
ciding the  fate  of  that  instrument  approached.  On  its 
particular  merits,  no  opinion  could  be  formed,  because 
they  were  unknown;  but  on  the  general  question  of  re- 
conciliation between  the  two  countries,  a  decisive  judg- 
ment was  extensively  made  up.  The  sentiments  called 
forth  by  the  occasion,  demonstrated  that  no  possible  ad- 
justment of  differences  with  Great  Britain,  no  possible 
arrangement  which  might  promise  a  future  friendly  in- 
tercourse with  that  power,  could  be  satisfactory.  The  ex- 
ecutive (Washington)  was  openly  attacked,  its  system 
condemned,  and  the  mission  of  Mr.  Jay  particularly  was 
reprobated  in  terms  of  peculiar  harshness." 

Vol.  II.  A 


2  Mr.  Madison's  Speech  on 

The  treaty,  however,  was  ratified  by  the  senate;  but 
when  the  lower  house  was  resorted  to  for  the  laws  neces- 
sary to  carry  it  into  effect,  the  antifederalists  opposed  it 
At  their  head  was  our  present  president,  Mr.  Madison, 
who  made  the  following  speech  upon  the  occasion. 

Mr.  Chairman, 

The  subject  now  under  the  consideration  of  the  com- 
mittee is  of  such  vast  extent,  of  such  vital  importance  to 
this  country,  and  involves  so  many  topics  which  demand 
minute  investigation,  that  I  wish  at  setting  out  to  be  un- 
derstood as  not  pretending  to  go  through  all  the  observa- 
tions that  may  be  applicable  to  its  circumstances,  but  as 
endeavouring  to  present  it  in  a  mere  general  view,  per- 
suaded that  the  omissions  I  shall  make,  will  be  amply 
supplied  by  other  gentlemen  who  are  to  follow  me  in  the 
discussion. 

The  proposition,  sir,  immediately  before  the  committee 
amounts  to  this,  that  the  treaty  lately  made  with  Great 
Britain  ought  to  be  directly  carried  into  effect  by  all  such 
means  and  provisions,  as  are  peculiarly  within  the  pro- 
vince and  the  competency  of  the  house  of  representatives 
to  supply.  This,  sir,  is  the  substance  of  the  point  imme- 
diately in  question:  But  it  will  in  examining  it,  be  proper 
to  keep  constantly  in  view  another  proposition  which  was 
made  yesterday,  by  the  gentleman  from  Pennsylvania,* 
and  referred  to  the  committee,  and  which  will  be  taken  up 
of  course,  if  the  immediate  question  shall  be  decided  in 
the  negative. 

Sir, — If  the  proposition  for  carrying  the  treaty  into 
effect  be  agreed  to  by  the  house,  it  must  necessarily  be 
upon  some  one  or  other  of  the  three  following  considera- 
tions;— That  the  legislature  is  bound  by  a  constitutional 

•  Mr.  Maclay,  who  moved  a  resolution  "  that  it  is  not  expedient 
at  this  time  to  concur  in  passing  the  laius  necessary  for  carrying  the 
said  treaty  into  effect."' 


the  British  Treaty.  3 

necessity  to  pass  the  requisite  laws,  without  examining 
the  treaty  or  considering  its  merits — or,  that  on  due  ex- 
amination the  treaty  is  deemed  to  be  in  itself  a  good  one 
— or  that,  apart  from  these  considerations,  there  shall  ap- 
pear extraneous  reasons  of  sufficient  weight  to  induce  the 
house  to  carry  the  treaty  into  effect,  even  though  it  should 
be  thought  to  be  in  itself  a  bad  treaty.  The  first  of  these 
considerations  however,  is  now  completely  excluded  by 
the  late  decision  of  the  house,  that  they  have  a  right  to 
judge  of  the  expediency  or  inexpediency  of  passing  laws 
relative  to  treaties — the  question  then  first  to  be  examined 
by  the  committee  is  that  which  relates  to  the  merits  of  the 
present  treaty.  I  will  now  therefore  proceed  to  discuss 
those  merits,  and  to  present  them  to  the  committee  under 
three  different  aspects.  The  first,  as  it  relates  to  the  ex- 
ecution of  the  treaty  of  peace,  made  in  the  year  1783. — 
The  second,  as  it  bears  upon  and  determines  the  several 
points  in  the  law  of  nations  connected  with  it. — And  the 
third,  as  it  infringes  upon,  and  may  be  supposed  to  affect 
the  commercial  intercourse  of  the  two  nations. 

Sir,  in  animadverting  upon  the  first  of  those,  I  will  not 
take  upon  me  the  invidious  office  of  enquiring  which 
party  it  is  to  whom  the  censure  may  justly  be  ascribed  of 
having  more  than  the  other  contributed  to  the  delay  of 
its  execution,  though  I  am  far  from  entertaining  any  de- 
sire to  shrink  from  the  task,  under  an  apprehension  that 
the  result  might  be  disadvantageous  to  this  country.  The 
present  treaty  has  itself  in  express  terms  waved  this  en- 
quiry, and  professes  that  its  purpose  is  to  adjust  all 
controversies  on  the  subjects  of  which  it  is  conversant, 
without  regard  to  the  mutual  complaints  or  pretensions  of 
the  parties.  Naturally  therefore  and  most  just  it  was  to  be 
expected,  that  the  arrangements  for  carrying  that  treaty 
into  effect  would  have  been  founded  on  the  most  exact, 
scrupulous  and  equitable  reciprocity. — But,  has  this  been 


4  Mr.  Madison's  Speech  on 

the  case,  sir?  I  venture  to  say  that  it  has  not — and  it 
grieves  me  to  add,  wh.-.t  nevertheless  truth  and  justice 
compel  me  to  declare,  that,  on  the  contrary,  the  arrange- 
ments were  founded  on  the  grossest  violation  of  that  prin- 
ciple. This,  sir,  is  undoubtedly  strong  language,  and  as 
such  I  should  be  one  of  the  last  men  living  to  give  it 
utterance,  if  I  were  not  supported  in  it  by  facts  no  less 
strong  and  unequivocal.  >  here  are  two  articles  in  the 
old  treaty  for  the  execution  of  which  no  provision  what- 
soever is  made  in  the  new  one. — The  first  is  that  which 
relates  to  the  restitution  of,  or  compensation  for  the 
negroes  and  other  property  carried  away  by  the  British. 
The  second  that  which  provided  for  the  surrender  to  the 
United  States  of  the  posts  so  long  withheld  by  them  on 
our  territory.  The  article  that  remained  unexecuted  on 
the  part  of  the  United  States  was  that  which  stipulated  for 
the  payment  of  all  bona  fide  debts  owing  to  British  credi- 
tors; and  the  present  treaty  guarantees  the  carrying  of  that 
article  into  the  most  complete  effect  by  the  United  States, 
together  with  all  damages  sustained  by  the  delay,  even 
to  the  most  rigid  extent  of  exaction,  while  it  contains  no 
stipulation  whatever  on  the  part  of  Great  Britain  for  the 
faithful  performance  of  the  articles  left  unexecuted  by  her. 
Look  to  the  treaty,  sir,  and  you  will  find  nothing  like  it, 
nothing  allusive  to  it. — No,  on  the  contrary,  she  is  entirely 
and  formally  absolved  from  her  obligation  to  fulfil  that  ar- 
ticle which  relates  to  the  negroes,  and  is  discharged  from 
making  any  compensation  whatsoever  for  her  having 
delayed  to  fulfil  that  which  provided  for  the  surrender  of 
the  posts. 

I  am  aware,  sir,  of  its  being  urged  in  apology,  or  by 
way  of  extenuation,  for  those  very  unequal  stipulations, 
that  the  injury  that  could  possibly  be  sustained  by  us  in 
consequence  of  the  detention  of  the  posts  by  the  British 
government,  was  not  susceptible  of  an  accurate  valuation; 


the  British  Treaty.  5 

that  between  such  an  injury  and  money  there  was  no 
common  measure,  and  that  therefore  the  wrong  was  in- 
capable of  liquidation,   and  afforded  no  fair  basis  for  a 
calculation  of  pecuniary  damages.   This  apology,  sir,  may 
appear  plausible,  but  it  is  by  no  means  satisfactory. — 
Nothing  could  be  more  obviously  practicable  than  an 
adjustment  of  some  kind  in  way  of  retribution — commis- 
sioner^ might  easily  have  been  appointed,  as  they  were, 
vested  too  with  full  discretion,  for  other  purposes,  to  take 
charge  of  this  subject,  with  instructions  to  do  what  they 
could,  if  unable  to  do  what  they  ought,  and  if  incapable 
of  effecting  positive  justice,  at  least  of  mitigating  the 
severe  and  provoking  injustice  of  not  so  much  as  at- 
tempting to  do   any  thing    For  the  very  extraordinary 
abandonment  of  the  compensation  due  for  the  negroes 
and  other  property  carried  off  by  the  British,  apologies 
had  also  been  lamely  attempted;  and  these  apologies  de- 
manded consideration.  It  is  said  to  be  at  least  doubtful 
whether  this  claim  was  ever  authorised  by  the  seventh 
article  of  the  treaty  of  peace,  and  that  Great  Britain  had 
uniformly  denied  the  meaning  put  by  the  United  States 
on  that  article.  In  reply  to  these  assertions,  it  is  sufficient 
for  me  to   remark,  that  so  far  from   its  being  true  that 
Great  Britain  had   uniformly  denied  the  American  con- 
struction of  that  article,  it  is  susceptible  of  positive  proof 
that  till  very  lately  Great  Britain  did  uniformly  admit  our 
construction  of  it,  and  h;id  rejected  that  claim  on  no  other 
ground  than   the    alleged  violation  of  the  fourth  article 
on  the  part  of  the  United  States.  But  on  the  supposition 
that  it  had  been  true,  that  Great  Britain  had  uniformly 
asserted  a  different  construction  of  the  article,  and  refused 
to  accede  to  ours,  I  beg  leave  to  ask  the  house  what 
ought  to  have  been  done? — Ought  we  to  have  acceded  at 
once  to  her  construction? — You  will  anticipate  me,  sir, 
in  saying,  assuredly  not.  Each  party  had  an  equal  right 


6  Mr,  Madison's  Speech  on 

to  interpret  the  compact;  and  if  they  could  not  agree, 
they  ought  to  have  done  in  this,  what  they  did  in  other 
cases,  where  they  could  not  agree — that  is,  have  referred 
the  settlement  of  the  meaning  of  the  compact  to  arbitra- 
tion: But,  for  us  to  give  up  the  claim  altogether  because 
the  other  party  to  the  compact  thought  proper  to  disallow 
our  construction  of  it,  was  in  effect  to  admit  nothing  less 
than  that  Great  Britain  had  a  better  right  than  the  United 
States  to  explain  the  point  in  controversy,  or  that  the 
United  States  had  done  something  which  injustice  called 
for  a  sacrifice  of  one  of  their  essential  rights. 

From  this  view  of  the  subject,  sir,  I  consider  it  to  be 
evident  that  the  arrangements  in  this  treaty  which  relate 
to  the  treaty  of  peace  of  1783,  are  in  several  instances 
deficient  both  in  justice  and  reciprocity.  And  here  a  cir- 
cumstance occurs  that  in  my  opinion  deserves  the  very 
particular  attention  of  the  committee.  From  the  face  of 
the  treaty  generally,  and  particularly  from  the  order  of  the 
articles,  it  would  seem  that  the  compensation  for  the  spo- 
liations on  our  trade  have  been  combined  with  the  ex- 
ecution of  the  treaty  of  peace,  and  may  therefore  have 
been  viewed  as  a  substitute  for  the  equivalent  stipulated 
for  the  negroes.  If  this  be  really  the  meaning  of  the  in- 
strument, it  cannot  be  the  less  obnoxious  to  reasonable 
and  fair  judges.  No  man  can  be  more  firmly  convinced 
than  I  myself  am,  of  the  perfect  justice  on  which  the 
claims  of  the  merchants  on  Great  Britain  are  founded,  nor 
can  any  one  be  more  desirous  to  see  them  fully  indemni- 
fied. But  surely,  sir,  it  will  not  be  asserted  that  compen- 
sation to  them  is  a  just  substitute  for  the  compensation 
due  to  others.  It  is  impossible  that  any  claims  can  be 
better  founded  than  those  of  the  sufferers  under  the 
seventh  article  of  the  treaty  of  peace — because  they  are 
supported  by  positive  and  acknowledged  stipulation  as 
well  as  by  equity  and  right.  Just  and  undeniable  as  the 


the  British  Treaty.  7 

claims  of  the  merchants  ma}'  be,  and  certainly  are,  the 
United  States  cannot  be  obliged  to  take  more  care  of 
them  than  of  the  claims  equally  just  and  unquestionable 
of  other  citizens;  much  less  to  sacrifice  the  latter  to  the 
former.  To  set  this  matter  in  a  light  that  will  exhibit  it 
in  the  clearest  and  most  familiar  way  possible  to  the  un- 
derstanding and  the  bosom  of  every  member  in  this 
house,  I  will  invert  the  case.  Let  us  suppose  for  a  mo- 
ment that  instead  of  relinquishing  the  claims  for  property 
wrongfully  carried  off  at  the  close  of  the  war,  and  obtain- 
ing stipulations  in  favour  of  the  mercantile  claims,  the 
mercantile  claims  had  been  relinquished,  and  the  other 
claims  provided  for — I  ask,  would  not  the  complaints  of 
the  merchants  have  been  as  universal  and  as  loud  as  they 
would  have  been  just. 

Sir,  besides  the  omissions  in  favour  of  Great  Britain 
which  I  have  already  pointed  out,  as  particularly  con- 
nected with  the  execution  of  the  treaty  of  peace,  the 
committee  will  perceive  that  there  are  conditions  annex- 
ed to  the  partial  execution  of  it  in  the  surrender  of  the 
western  posts,  which  increase  the  general  inequality  of 
this  part  of  the  treaty,  and  essentially  affect  the  value  of 
those  objects.  I  beseech  the  committee  to  examine  the 
point  with  the  attention  a  subject  of  so  very  important  a 
character  demands. 

The  value  of  the  posts  to  the  United  States  is  to  be 
estimated  by  the  influence  of  those  posts.  First  on  the 
trade  with  the  Indians,  and  secondly  on  the  temper  and 
conduct  of  the  Indians  to  the  United  States. 

Their  influence  on  the  Indian  trade  depends  principally 
on  the  exclusive  command  they  give  to  the  several  car- 
rying places  connected  with  the  posts.  These  places  are 
understood  to  be  of  such  importance  in  this  respect,  that 
those  who  possess  them  exclusively  will  have  a  monopoly 
of  that  lucrative  intercourse  with  a  great  part  of  the 


8  Mr.  Madison' *s  Speech  on 

savage  nations.  Great  Britain  having  exclusively  possess- 
ed those  places,  has  possessed  all  those  advantages  with- 
out a  rival;  and  it  was  reasonably  enough  expected,  that 
with  the  exclusive  possession  of  the  posts,  the  exclusive 
benefits  of  that  trade  and  intercourse  would  be  transfer- 
red also:  but  by  the  treaty  now  under  consideration,  the 
carrying  places  are  to  be  enjoyed  in  common,  and  it  will 
be  determined  by  the  respective  advantages  under  which 
British  and  American  traders  will  engage  in  the  trade, 
which  of  them  is  to  have  the  larger  share  in  it.  In  this  point 
of  view,  even  if  in  no  other,  I  view  this  regulation  in  the 
treaty  as  highly  impolitic  and  injurious  to  the  interests  of 
this  country. — I  need  not  dwell  upon  the  signal  advan- 
tages the  British  will  have  in  their  superior  capital,  which 
we  shall  have  to  encounter  in  all  our  commercial  rival- 
ships:  but  there  is  another  consideration  which  ought  to 
have,  and  no  doubt  will  have  great  weight  with  the  com- 
mittee on  this  subject.  The  goods  imported  for  the  In- 
dian trade  through  Canada,  pay  no  duties — whilst  those 
imported  through  the  United  States  for  that  trade,  will 
have  paid  duties  from  seven  to  ten  per  cent.  At  the  same 
time  every  man  must  see  that  a  drawback  is  impractica- 
ble, or  would  be  attended  with  an  expense  which  the 
business  would  not  bear.  Whatever  the  value  or  the  im- 
portance therefore  which  the  posts  may  be  supposed  to 
derive  from  those  considerations,  they  are  in  a  great  mea- 
sure stript  of  them  by  the  condition  annexed  by  this  treaty 
to  the  surrender  of  the  posts.  Instead  of  securing,  as  it 
ought  to  have  done,  a  monopoly  In  our  favour,  the  carry- 
ing places  are  made  common  to  both  countries  under 
circumstances  which  will  in  all  probability  throw  a  mo- 
nopoly into  the  hands  of  Great  Britain.  Nor  is  this  a 
transient  or  a  temporary  evil,  for  that  article  of  the  treaty 
is  to  last  forever.  As  to  the  influence  of  the  posts  on  the 
conduct  of  the  Indians,  it  is  well  known  to  depend  chiefly 


the  British  Treaty,  9 

upon  their  influence  on  the  Indian  trade.  In  proportion 
therefore  as  the  condition  annexed  to  the  surrender  of 
posts  affects  the  one  it  must  affect  the  other.  So  long  and 
in  such  degree  as  the  British  continue  to  enjoy  the  Indian 
trade,  they  will  continue  to  influence  the  Indian  conduct; 
and  though  that  should  not  be  in  the  same  degree  as 
heretofore,  it  will  be  at  least  in  a  degree  sufficiently  great 
to  pass  sentence  of  condemnation  on  the  article  in  ques- 
tion. 

Another  very  extraordinary  feature  in  this  part  of  the 
treaty,  sir,  is  the  permission  that  it  grants  to  aliens  to 
hold  lands  in  perpetuity.  I  will  not  inquire  how  far  this 
may  be  authorised  by  constitutional  principles,  but  I  will 
always  maintain  that  there  cannot  be  found  in  any  treaty 
that  ever  was  made,  either  where  territory  was  ceded,  or 
where  it  was  acknowledged  by  one  nation  to  another, 
one  other  such  stipulation.  Although  I  admit  that  in 
such  cases  it  has  been  common,  and  may  be  right,  to 
make  regulations  for  the  conservation  of  the  property  of 
the  inhabitants,  yet  I  believe  it  would  appear,  that,  in 
every  case  of  the  kind  that  has  occurred,  the  owners  of 
landed  property,  when  they  were  so  favoured,  were  either 
called  upon  to  swear  allegiance  to  the  new  sovereign,  or 
compelled  to  dispose  of  their  landed  property  within 
a  reasonable  time. 

Sir,  the  stipulation  by  which  all  the  ports  of  the  United 
States  are  to  open  to  Great  Britain,  as  a  valuable  con- 
sideration for,  or  condition  upon  which  those  of  one  of  her 
unimportant  provinces  are  to  be  opened  to  us  in  return, 
is  marked  with  such  signal  inequality,  that  it  ought  not 
only  to  be  rejected,  but  marked  with  censure.  Nor  is  the 
clause  respecting  the  Mississippi  less  censurable.  To  me, 
indeed,  it  appears  singularly  reprehensible.  Happy  is  it 
for  the  United  States,  that  the  adjustment  of  our  claims 
with  Spain  have  been  brought  about  before  any  evil 

Vol.  II.  B 


10  Mr.  Madison's  Speech  on 

operation  of  the  clause  has  been  experienced.  But  of  the 
tendency  of  the  thing,  I  am  persuaded,  there  can  be  no 
doubt.  It  is  the  more  remarkable  that  this  extension  of 
the  privileges  of  Great  Britain  on  the  Mississippi,  beyond 
those  contained  in  the  treaty  of  peace,  should  have  been 
admitted  into  the  new  treaty,  because,  by  the  latter  itself, 
the  supposition  is  suggested  that  Great  Britain  may  be 
deprived,  by  her  real  boundary,  of  all  pretensions  to  a 
share  in  the  waters  and  on  the  banks  of  the  Mississippi. 
And  now,  sir,  to  turn  to  the  second  aspect  in  which  I 
have  undertaken  to  examine  the  question;  namely,  as  it 
determines  the  several  points  in  the  law  of  nations 
connected  with  it.  And  here,  I  must  say,  that  the  same 
want  of  real  reciprocity,  and  the  same  sacrifice  of  the 
interests  of  the  United  States,  are  conspicuous.  Sir,  it  is 
well  known  that  the  principle  that  "tree  ships  make 
free  goods,"  has  ever  been  a  great  and  favourite  object 
with  the  United  States;  they  have  established  this  principle 
in  all  their  treaties;  they  have  witnessed  with  anxiety  the 
general  effort  and  the  successful  advances  towards  incor- 
porating this  principle  in  the  law  of  nations;  a  principle 
friendly  to  all  neutral  nations,  and  particularly  interesting 
to  the  United  States.  I  know,  sir,  that  it  has  before  now 
been  conceded,  on  the  part  of  the  United  States,  that  the 
law  of  nations  stood  as  the  present  treaty  regulates  it;  but 
it  does  not  follow  that  more  than  acquiescence  in  that 
doctrine,  is  proper.  There  is  an  evident  and  a  material 
distinction  between  silently  acquiescing  in  it,  and  giving 
it  the  additional  force  and  support  of  a  formal  and  positive 
stipulation.  The  former  was  all  that  could  have  been 
required,  and  the  latter  was  more  than  ought  to  have  been 
unnecessarily  yielded.  The  treaty  is  liable  to  similar 
objections  in  respect  of  the  enumeration  it  contains  of 
contraband  articles,  in  which,  sir,  I  am  sorry  to  be  obliged 
to  remark,  that  the  circumstances  and  interests  of  the 


the  British  Treaty.  11 

United  States  have  been  made  to  give  way  to  the  parti- 
cular views  of  the  other  party,  while  the  examples  held  out 
in  our  other  treaties  have  been  disregarded.  Hemp,  tar, 
pitch,  turpentine,  &c.  important  staples  of  this  country, 
have,  without  even  a  pretext  of  reciprocity,  been  subjected 
to  confiscation.  No  nation  which  produces  these  articles 
has,  I  believe,  any  treaties  at  present,  making  the  same 
sacrifice,  with  the  exception  of  Denmark,  who,  in  the  year 
1780,  by  what  means  I  know  not,  was  induced  to  agree 
to  an  explanation  of  the  treaty  of  1670,  by  which  these 
articles  are  declared  to  be  contraband.  Now,  sir,  it  appears 
to  me  that  this  same  supplementary  and  explanatory 
agreement  between  Great  Britain  and  Denmark,  has  been 
the  model  selected  for  the  contraband  list  of  the  treaty  at 
present  in  question;  the  enumeration  in  the  latter  being 
transcribed,  word  for  word,  from  the  former,  with  a  single 
exception,  which,  not  only  is  in  itself,  but  renders  the 
whole  transaction  extremely  remarkable.  The  article 
"Horses,"  which  stands  as  one  part  of  the  original,  is 
entirely  omitted  in  the  copy;  and  what  renders  the 
omission  more  worthy  of  scrutiny,  is,  that  though  the 
treaty  in  general  seems  to  have  availed  itself,  wherever 
it  readily  could,  of  the  authority  of  Vattel,  the  omission 
of  horses  has  been  no  less  a  departure  from  him,  than 
from  the  original  from  which  that  part  of  the  treaty  was 
copied.  Indeed,  the  whole  of  this  particular  transaction 
seems  fraught  with  singularity  and  just  liability  to 
suspicion;  for,  strange  as  it  may  appear,  it  is  certainly 
true,  that  the  copy  had  proceeded  exactly  from  the 
original,  till  it  got  as  far  as  the  purposes  of  Great  Britain 
required,  and  at  that  point  stopt  short.  I  intreat  the  com- 
mittee to  pay  attention  to  this  fact.  After  enumerating 
the  articles  that  are  to  be  deemed  contraband,  the  Danish 
article  goes  on  in  the  words  following,  viz.  "  But  it 
is  expressly  declared,  that  among  contraband  merchan- 


12  Mr.  Madisoris  Speech  on 

dizes,  shall  not  be  comprehended,  fish  and  meats,  whether 
fresh  or  salted;  wheat,  flour,  corn,  or  other  grain;  beans, 
oil,  wines,  and  generally  whatever  serves  for  the  nourish- 
ment and  support  of  life;  all  of  which  may  at  all  times  be 
sold  and  transported  like  any  other  merchandizes,  even  to 
places  held  by  an  enemy  of  the  two  crowns,  provided  they 
be  not  besieged  or  blockaded." 

This  view  of  the  subject  naturally  leads  me  to  make 
some  observations  on  that  clause  of  the  treaty  which 
relates  to  provisions,  and  which,  to  say  the  least  of  it, 
wears  a  very  ambiguous  and  disagreeable  countenance; 
or,  to  speak  more  precisely,  seems  to  carry  with  it  a 
necessary  implication  that  provisions,  though  not  bound 
to  besieged  or  blockaded  places,  may,  according  to  the 
law  of  nations,  as  it  now  exists,  be  regarded  and  treated 
as  contraband.  According  to  the  genuine  law  of  nations, 
no  articles  which  are  not  expressly  and  generally  contra- 
band, are  so,  in  any  particular  instance,  except  in  the 
single  case  of  their  going  to  a  place  besieged;  yet  it  is 
recognized  by  this  treaty,  that  there  are  other  cases  in 
which  provisions  may  be  deemed  contraband,  from  which 
recognition  implication  fairly  results,  that  one  of  those 
cases  may  be  that  which  has  been  assumed  and  put  in 
force  bv  Great  Britain,  'in  relation  to  the  United  States* 
Such  trivial  cases  as  might  be  devised  by  way  of  appur- 
tenances to  'the  law  that  condemns  what  is  bound  to 
blockaded  places,  can  by  no  means  satisfy  the  import  of 
the  stipulation,  because  such  cases  cannot  be  presumed 
to  have  been  in  contemplation  of  the  parties.  And  if  the 
particular  case  of  provisions  bound  to  a  country  at  war, 
although  not  to  a  besieged  place,  was  not  meant  to  be  one 
of  the  cases  of  contraband  according  to  the  existing  law 
of  nations,  how  necessary  was  it  to  have  said  so;  and  how 
easy  and  natural  would  that  course  have  been,  with  the 
Danish  example  on  the  subject  before  their  eyes. 


the  British  Treaty.  13 

On  the  supposition  that  provisions  in  our  own  vessels 
bound  to  countries  at  war  with  Great  Britain  can  be  now 
seized  by  her  for  her  own  use  on  the  condition  stipulated, 
this  feature  of  the  treaty,  sir,  presents  itself  in  a  very 
serious  light  indeed,  especially  if  the  doctrine  be  resorted 
to  that  has  been  laid  down  by  the  executive  in  the  letter 
of  Mr.  Jefferson,  then  secretary  of  state,  to  Mr.  Pinckney, 
on  the  7th  of  September,  1793.  This  letter  is  a  comment 
on  the  British  instructions  of  June  the  8th,  1793,  for 
seizing  neutral  provisions.  After  stating  the  measure 
as  a  flagrant  breach  of  the  law  of  nations,  and  as  ruinous  to 
our  commerce  and  agriculture,  it  has  the  following 
paragraph:  "  This  act  too  tends  to  draw  us  from  that  state 
"  of  peace  in  which  we  are  willing  to  remain.  It  is  an 
"  essential  character  of  neutrality  to  furnish  no  aids  not 
"  stipulated  by  treaty,"  That  is,  sir,  by  a  treaty  made 
prior  to  the  war — "  to  one  party  which  we  are  not  equally 
"  ready  to  furnish  to  the  other.  If  we  permit  corn  to  be 
"  sent  to  Great  Britain  and  her  friends,  we  are  equally 
"  bound  to  permit  it  to  be  sent  to  France.  To  restrain  it 
"  would  be  a  partiality  that  must  lead  to  war;  and  between 
"  restraining  it  ourselves,  and  permitting  her  enemies  to 
"  restrain  it  unrightfully,  there  is  no  difference.  She 
"  would  consider  it  as  a  mere  pretext,  of  which  she 
"  certainly  would  not  agree  to  be  the  dupe;  and  on  what 
"  honourable  ground  could  we  otherwise  explain  it? 
"  Thus  we  should  see  ourselves  plunged,  by  this 
"  unauthorized  act  of  Great  Britain  into  a  war  with  which 
"  we  meddle  not,  and  which  we  wish  to  avoid,  if  justice 
"  to  all  parties,  and  from  all  parties,  will  enable  us  to 
"  avoid  it."  Sir,  I  entreat  the  committee  to  give  this 
very  interesting  executive  document  all  the  attention 
which  it  demands,  and  they  have  it  in  their  power  to 
bestow. 


14  Mr.  Madison's  Speech  on 

I  am  now,  sir,  come  to  that  article  of  the  treaty  by  which 
the  sequestration  of  British  property  is  prohibited;  upon 
which  I  must  say,  that  though  I  should  in  all  probability 
be  one  of  the  last  men  existing  to  have  recourse  to  such 
an  expedient  for  redress,  I  cannot  approve  of  a  perpetual 
and  irrevocable  abandonment  of  a  defensive  weapon,  the 
existence  of  which  may  render  the  use  of  it  unnecessary. 
Sir,  there  is  an  extraordinary  peculiarity  in  the  situation  of 
this  country  as  it  stands  in  its  relations  to  Great  Britain. 
As  we  have  no  fleets  or  armies  to  command  a  respect  for 
our  rights,  we  ought  to  keep  in  our  own  hands  all  such 
means  as  our  situation  gives  us.  This  article,  sir,  is 
another  instance  of  the  very  little  regard  that  has  been 
paid  to  reciprocity.  It  is  well  know  that  British  subjects 
now  have,  and  are  likely  always  to  have  in  this  country 
a  vast  quantity  of  property  of  the  kind  made  sacred. 
American  citizens,  it  was  known,  had  little,  and  were 
likely  to  have  little  of  the  kind  in  Great  Britain.  If  a 
real  reciprocity  had  been  intended,  why  were  not  other 
kinds  of  private  property,  such  as  vessels  and  their 
cargoes,  equally  protected  against  violation?  These,  even 
within  the  jurisdiction  of  Great  Britain,  are  left  open  to 
seizure  and  sequestration,  if  Great  Britain  shall  find  it 
expedient;  and  why  was  not  property  on  the  high  seas 
under  the  protection  of  the  law  of  nations,  which  is  said 
to  be  a  part  of  the  law  of  the  land,  made  secure  by  a  like 
stipulation?  This  would  have  given  a  face  of  equality  and 
reciprocity  to  the  bargain.  But  nothing  of  the  sort  makes 
a  part  of  it.  Where  Great  Britain  has  a  particular  interest 
at  stake,  the  treaty  watchfully  provides  for  it ;  when  the 
United  States  have  an  equal  interest  at  stake,  and  equally 
intitled  to  protection,  it  is  abandoned  to  all  the  danger? 
which  it  has  experienced. 

Having  taken  this  brief  review  of  the  positive  evils  in 
this  part  of  the  treaty,  I  might  add  the  various  omissions 


the  British  Treaty,  15 

which  are  chargeable  upon  it:  But,  as  I  shall  not  pretend 
to  exhaust  the  subject,  I  will  mention  only  one,  and  that 
is  the  utterly  neglecting  to  provide  for  the  exhibition  of 
sea  papers;  and,  I  cannot  help  regarding  this  omission  as 
truly  extraordinary,  when  I  observe  that  in  almost  every 
modern  treaty,  and  particularly  in  all  our  other  treaties, 
an  article  on  this  subject  has  been  regularly  inserted. 
Indeed  it  has  become  almost  an  article  of  course  in  the 
treaties  of  the  present  century. 

I  am  now,  sir,  come  to  the  third  aspect  in  which  the 
commercial  articles  of  this  treaty  present  themselves  for 
consideration.  In  the  free  intercourse  stipulated  between 
the  United  States  and  Great  Britain,  it  cannot  be 
pretended  that  any  advantage  is  gained  by  the  former. 
A  treaty  is  surely  not  necessary  to  induce  Great  Britain 
to  receive  our  raw  materials  and  to  sell  us  her  manufac- 
tures. Let  us,  on  the  other  hand,  consider  what  is  given 
up  by  the  United  States. 

It  is  well  known  that  when  our  government  came  into 
operation,  the  tonnage  of  America  employed  in  the  British 
trade,  bore  a  very  inconsiderable  proportion  to  the  British 
tonnage.  There  being  nothing  on  our  side  to  counteract 
the  influence  of  capital  and  other  circumstances  on  the 
British  side,  that  disproportion  was  the  natural  state  of 
things.  As  some  small  balance  to  the  British  advantages, 
and  particularly  that  of  her  capital,  our  laws  had  made 
several  regulations  in  favour  of  our  shipping,  among  which 
was  the  important  encouragement  resulting  from  the 
difference  of  ten  per  cent  in  the  duties  paid  by  American 
and  foreign  vessels.  Under  this  encouragement  the 
Americantonnage  h  as  increased  in  a  very  respectable 
degree  of  proportion  to  the  British  tonnage.  Great  Britain 
has  never  deemed  it  prudent  to  frustrate  or  diminish  the 
effects  of  this  by  attempting  any  countervailing  measures 
for  her  shipping;  being  aware,  no  doubt,  that  we  could 


16  Mr.  Madison's  Speech  on 

easily  preserve  the  difference  by  further  measures  on  our 
side:  But  by  this  treaty  she  has  reserved  to  herself  the 
right  to  take  such  countervailing  measures  against  our 
existing  regulations,  and  we  have  surrendered  our  right 
to  pursue  further  defensive  measures  against  the  influence 
of  her  capital.  It  is  justly  to  be  apprehended,  therefore, 
that  under  such  a  restoration  of  things  to  their  former 
state,  the  American  tonnage  will  relapse  into  its  former 
disproportion  to  the  British  tonnage. 

Sir,  when  I  turn  my  attention  to  that  branch  of  the 
subject  which  relates  to  the  West  Indies,  I  see  still  greater 
cause  for  astonishment  and  dissatisfaction.  As  the  treaty 
now  stands,  Great  Britain  is  left  as  free  as  she  ever  has 
been  to  continue  to  herself  and  her  shipping,  the  entire 
monopoly  of  the  intercourse.  Recollecting,  as  I  do,  and 
as  every  member  of  the  committee  must  do,  the  whole 
history  of  this  subject,  from  the  peace  of  1783,  through 
every  subsequent  stage  of  our  independence,  down  to 
mission  of  the  late  envoy,  I  find  it  impossible  adequately 
to  express  my  astonishment  that  any  treaty  of  commerce 
should  ever  have  been  acceded  to,  that  so  entirely  aban- 
doned the  very  object  for  which  alone  such  a  treaty  could 
have  been  contemplated;  I  never  could  have  believed  that 
the  time  was  so  near,  when  all  the  principles,  claims,  and 
calculations  which  have  heretofore  prevailed  among  all 
classes  of  people,  in  every  part  of  the  union,  on  this  inter- 
esting point,  were  to  be  so  completely  renounced.  A  treaty 
of  commerce  with  Great  Britain,  excluding  a  reciprocity 
for  our  vessels  in  the  West  India  trade,  is  a  phenomenon 
which  fills  me  with  more  surprise  than  I  know  how  to 
express. 

I  may  be  told,  perhaps,  that  in  the  first  place  Great 
Britain  grants  to  no  other  nation,  the  privilege  granted  to 
the  United  States  of  trading  at  all  with  her  West  Indies, 
and  that,  in  the  second  place,  this  is  an  important  relaxation 


the  British  Treaty.  17 

of  the  colonial  system  established  among  the  nations  of 
Europe.  To  the  first  of  these  observations,  I  reply,  that 
no  other  nation  bears  the  same  relation  to  the  West  Indies 
as  the  United  States;  that  the  supplies  of  the  United 
States  are  essential  to  those  islands;  and  that  the  trade 
with  them  has  been  permitted  purely  on  that  account,  and 
not  as  a  beneficial  privilege  to  the  United  States. 

To  the  second,  I  reply,  that  it  is  not  true  that  the  colony 
system  required  an  exclusion  of  foreign  vessels,  from  the 
carrying  trade  between  the  colonies  and  foreign  countries. 
On  rhe  contrary,  the  principle  and  practice  of  the  colony 
system  are,  to  prohibit  as  much  as  may  be  convenient,  all 
trade  between  the  colonies  and  foreign  countries;  but  when 
sucn  a  trade  is  permitted  at  all,  as  necessary  for  the 
colonies,  then  to  allow  the  vessels  of  such  foreign  countries 
a  reciprocal  right  of  being  employed  in  the  trade.  Great 
Britain  has  accordingly  restrained  the  trade  of  her  islands 
with  this  country  as  far  as  her  interest  in  them  will  permit. 
But,  has  she  allowed  our  vessels  the  reciprocal  right  to 
carry  on  the  trade  so  far  as  it  is  not  restrained?  No,  no 
such  thing.  Here,  she  enforces  a  monopoly  in  her  own 
favour,  contrary  to  justice,  and  contrary  to  the  colonial 
system  of  every  European  that  possesses  any  colonies; 
none  of  whom,  without  a  single  exception,  ever  open  a 
trade  between  their  colonies  and  other  countries,  v/ithout 
opening  it  equally  to  vessels  on  both  sides.  This  is 
evidently  nothing  more  than  strict  justice.  A  colony  is  a 
part  of  an  empire.  If  a  nation  choose,  she  may  prohibit 
all  trade  between  a  colony  and  a  foreign  country,  as  she 
may  between  any  other  part  of  her  dominions  and  a  foreign 
country;  but  if  she  permit  such  a  trade  at  all,  it  must  be 
free  to  vessels  on  both  sides,  as  well  in  the  case  of  colonies 
as  of  any  other  part  of  her  dominions.  Great  Britain  has 
the  same  right  to  prohibit  foreign  trade  between  London 
and  the  United  States,  as  between  Jamaica  and  the  United 
Vol.  II.  C 


18  Mr.  Madison' 's  Speech  on 

States;  but  if  no  such  prohibition  be  made  with  respect  to 
either,  she  is  equally  bound  to  allow  foreign  vessels  a 
common  right  with  her  own  in  both.  If  Great  Britain 
were  to  say  that  no  trade  whatever  shall  be  carried  on 
between  London  and  the  United  States,  she  would 
exercise  a  right  of  which  we  could  not  reasonably  com- 
plain. If  she  were  to  say  that  no  American  vessels  should 
be  employed  in  the  trade,  it  would  produce  just  complaints 
and  justify  a  reciprocal  regulation  as  to  her  vessels.  The 
case  of  the  trade  from  a  port  in  the  West  Indies  is 
precisely  similar. 

In  order  that  the  omission  of  the  treaty  to  provide  a 
reciprocity  for  our  vessels  in  the  West  India  trade,  may 
be  placed  in  its  true  light,  it  will  be  proper  to  attend  to 
another  part  of  the  treaty,  which  ties  up  the  hands  of  this 
country  against  every  effort  for  making  it  the  interest  of 
Great  Britain  to  yield  to  our  reasonable  claims.  To  this 
end  I  beg  leave  to  point  out  to  the  committee,  the  clause 
which  restrains  the  United  States  from  imposing  prohibi- 
tions or  duties  on  Great  Britain,  in  any  case,  which  shall 
not  extend  to  all  other  nations,  and  to  observe  that  the 
clause  makes  it  impossible  to  operate  on  the  unreasonable 
policy  of  that  nation,  without  suspending  our  commerce 
at  the  same  time  with  all  other  nations,  whose  regulations 
with  respect  to  us  may  be  ever  so  favourable  and  satis- 
factory. 

The  fifteenth  article,  Mr.  Chairman,  has  another 
extraordinary  feature,  vvhich  I  should  imagine  must 
strike  every  observer.  In  other  treaties  which  profess  to 
put  the  parties  on  the  footing  of  the  most  favoured 
nation,  it  is  stipulated  that  where  new  favours  are  granted 
to  a  particular  nation  in  return  for  favours  received,  the 
party  claiming  tbe  new  favour  shall  pay  the  price  of  it. 
This  is  just  and  proper  where  the  footing  of  the  most 
Savoured  nation  is  established  at  al!.  But  this  article  eives 


the  British  Treaty.  19 

to  Great  Britain  the  full  benefit  of  all  privileges  that  may 
be  granted  to  any  other  nation,  without  requiring  from 
her  the  same  or  equivalent  privileges  with  those  granted 
by  such  nation.  Hence  it  would  happen,  that,  if  Spain, 
Portugal  or  France  should  open  their  colonial  ports  to  the 
United  States,  in  consideration  of  certain  privileges  in 
our  trade,  the  same  privileges  would  result  gratis  and 
ipso  facto  to  Great  Britain.  This  stipulation,  sir,  I  con- 
sider as  peculiarly  impolitic,  and  such  a  one  as  can  not 
fail  to  form,  in  the  view  of  the  committee,  a  very  solid  and 
weighty  objection  to  the  treaty. 

I  dare  say,  sir,  that  by  the  advocates  of  the  treaty 
great  stress  will  be  laid  on  the  article-  relating  to  the  East 
Indies.  To  those  who  are  better  acquainted  with  the 
subject  than  I  can  pretend  to  be,  I  shall  resign  the  task  of 
examining  and  explaining  that  part  of  the  subject.  With 
two  observations,  however,  I  must  trouble  the  committee 
before  I  drop  the  subject  of  this  article;  one  is,  that  some 
gentlemen,  as  judicious  and  well  informed  as  any  who  can 
be  consulted,  declare  that  they  consider  this  article  as 
affording  not  a  shadow  of  advantage  to  the  United  States. 
The  other  is,  that  no  privilege  is  stipulated  in  it,  which 
has  not  heretofore  been  uniformly  granted  without  stipu- 
lation; and  as  the  grant  can  have  proceeded  from  no 
motive  but  a  pure  regard  to  the  British  interest  in  that 
country,  there  was  every  reasonable  security  that  the 
trade  would  continue  open  as  it  had  been,  under  the  same 
consideration. 

Such,  Mr.  Chairman,  being  the  character  of  this  treaty, 
as  it  relates  to  the  execution  of  the  treaty  of  peace,  the 
great  principles  of  the  law  of  nations,  and  the  regulations 
of  commerce,  it  never  can  be  viewed  as  having  any 
claim  to  be  carried  into  effect  on  its  own  account.  Is  there 
then  any  consideration  extraneous  to  the  treaty  that  can 
furnish  the  requisite  motives?  On  this  part  of  the  subject 


20  Mr.  Madison's  Speech  on 

the  house  is  wholly  without  information.  For  myself,  I 
am  ready  to  declare  that  I  have  neither  seen,  nor  known, 
nor  heard,  of  any  circumstances  in  the  general  posture  of 
affairs,  or  in  the  particular  relations  of  this  country  to  them, 
that  can  account  for  the  unequal  and  injurious  arrange- 
ments which  we  are  now  called  upon  for  laws  to  execute. 
But  there  is  something  further  to  be  taken  into  account; 
I  mean  the  continuance  of  the  spoliations  on  our  trade, 
and  the  impressment  of  our  seamen,  whether  to  be  under- 
stood as  practical  comments  on  the  treaty,  or  as  infracti6ns 
of  it,  cannot  but  enforce  on  the  minds  of  the  committee 
the  most  serious  reflections.  And  here,  sir,  I  beg  leave 
to  refer  once  more  to  the  passage  I  have  already  read, 
extracted  from  the  letter  of  Mr.  Jefferson  to  Mr.  Pinckney, 
and  to  ask  if,  as  there  stated  by  the  executive,  our 
neutrality  and  peace  are  to  be  exposed  by  permitting 
practices  of  that  kind,  what  must  be  thought  of  our  giving 
effect,  in  the  midst  of  such  practices,  to  a  treaty  from 
which  a  countenance  might  be  derived  by  that  nation  for 
going  on  further  with  them. 

I  am  aware  that  the  executive,  notwithstanding  the 
doctrine  and  policy  laid  down  as  above,  has  finally  con- 
curred in  the  treaty  under  all  those  circumstances.  But  I 
do  not  consider  that  as  invalidating  the  reasoning  drawn 
from  the  present  state  of  things.  I  may  be  treading  on 
delicate  ground;  but  I  cannot  think  it  improper  to 
remark,  because  it  is  a  known  fact,  that  the  executive 
paused  for  some  weeks  after  the  concurrence  of  the  senate, 
before  he  ratified  the  treaty  with  his  signature;  and  I 
think  it  may  fairly  be  presumed  that  the  true  grounds  of 
that  pause  were  the  renewal  of  spoliation,  and  a  recollection 
of  the  lights  in  which  they  had  been  represented;  that  on 
that  supposition  he  was  probably  influenced  in  signing  the 
treaty  when  he  did,  by  an  expectation  that  such  a  mark  of 

nfidence  in  the  British  government,  would  produce  an 


the  British  Treaty.  21 

abolition  of  the  unlawful  proceeding,  and  consequently, 
if  it  were  foreseen  that  the  spoliations  would  have  been 
continued,  as  we  find  them  to  be,  the  treaty  would  not 
have  been  then  signed,  or  if  it  had  not  been  then  signed, 
it  would  not  be  signed  under  the  circumstances  of  the 
moment,  when  it  is  falling  under  our  consideration. 

I  shall  conclude,  Mr.  Chairman,  with  taking  notice  of 
two  considerations  which  have  been  made  great  use  of  by 
way  of  inducing  congress  to  carry  the  treaty  into  effect. 
In  the  first  place  it  has  been  said,  that  the  greater  part  of 
the  treaty  is  to  continue  in  force  for  no  longer  a  time  than 
two  years  after  the  termination  of  the  present  wrar  in 
Europe;  and  that  no  very  great  evils  can  grow  out  of  it 
in  that  short  period.  To  this  I  reply,  that  ten  of  the  articles 
containing  very  objectionable  stipulations,  are  perpetual; 
and  that,  in  the  next  place,  it  will  be  in  the  power  of  Great 
Britain,  at  the  expiration  of  the  other  articles,  to  produce 
the  same  causes  for  the  renewal  of  them,  as  are  now  urged 
in  their  support.  If  we  are  now  to  enforce  the  treaty  lest 
Great  Britain  should  stir  up  the  Indians,  and  refuse  to  pay 
our  merchants  for  the  property  of  which  she  has  plundered 
them,  can  she  not,  at  the  end  of  two  or  three  years,  plunder 
them  again,  to  the  same  or  greater  amount;  cannot  the 
same  apprehensions  be  revived  with  respect  to  the  Indians, 
and  will  not  the  arguments  then  be  as  strong  as  they  are 
now,  for  renewing  the  same  treaty,  or  for  making  any  other 
equal  sacrifices  that  her  purposes  may  dictate. 

It  has  been  asked,  what  would  be  the  consequences  of 
refusing  to  carry  the  treaty  into  effect?  I  answer,  that  the 
only  supposable  consequence  is,  that  the  executive,  if 
governed  by  the  prudence  and  patriotism,  which  I  do  not 
doubt  will  govern  that  department,  will  of  course  pursue 
the  measures  most  likely  to  obtain  a  reconsideration  and 
remodification  of  the  offensive  parts  of  the  treaty.  The 
idea  of  war  as  a  consequence  of  refusing  to  give  effect  to 


22  Mr.  Madison's  Speech,  &c. 

the  treaty,  is  too  visionary  and  incredible  to  be  admitted 
into  the  question.  No  man  will  say  that  the  United  States, 
if  they  be  really  an  independent  people,  have  not  a  right 
to  judge  of  their  own  interests,  and  to  decline  any  treaty 
that  does  not  duly  provide  for  them.  A  refusal,  therefore, 
in  such  cases,  can  afford  no  cause,  nor  pretext,  nor  provo- 
cation for  war,  or  for  any  just  resentment.  But,  apart 
from  this,  is  it  conceivable  that  Great  Britain,  with  all  the 
dangers  and  embarrassments  that  are  thickening  on  her. 
will  wantonly  make  war  on  a  country  which  is  the  best 
market  she  has  in  the  world  for  her  manufactures,  which 
pays  her  an  annual  balance  in  specie,  of  ten  or  twelve 
millions  of  dollars,  and  whose  supplies,  moreover,  are 
essential  to  an  important  part  of  her  dominions?  Such  a 
degree  of  infatuation  ought  not  to  be  ascribed  to  any 
country.  And,  at  the  present  crisis,  for  reasons  well  known, 
an  unprovoked  war  from  Great  Britain,  on  this  country, 
would  argue  a  degree  of  madness,  greater  than  any  other 
circumstances  that  could  well  be  imagined. 

With  all  the  objections,  therefore,  to  the  treaty,  which 
I  have  stated,  I  hope  it  will  not  now  be  carried  into  effect, 
and  that  an  opportunity  will  take  place  for  reconsidering 
the  subject,  on  principles  more  just  and  favourable  to  the 
United  States. 


23 


SPEECH  OF  MR.  AMES, 

on  the  same  occasion,  delivered  15th  april,  1795 

Mr.  Chairman, 

I  ENTERTAIN  the  hope,  perhaps  a  rash  one,  that  my 
strength  will  hold  me  out  to  speak  a  few  minutes. 

In  my  judgment,  a  right  decision  will  depend  more  on 
the  temper  and  manner,  with  which  we  may  prevail  upon 
ourselves  to  contemplate  the  subject,  than  upon  the 
development  of  any  profound  political  principles,  or  any 
remarkable  skill  in  the  application  of  them.  If  we  could 
succeed  to  neutralize  our  inclinations,  we  should  find  less 
difficulty  than  we  have  to  apprehend  in  surmounting  all 
our  objections. 

The  suggestion,  a  few  days  ago,  that  the  house  mani- 
fested symptoms  of  heat  and  irritation,  was  made  and 
retorted  as  if  the  charge  ought  to  create  surprise,  and 
would  convey  reproach.  Let  us  be  more  just  to  ourselves 
and  to  the  occasion.  Let  us  not  affect  to  deny  the  existence 
and  the  intrusion  of  some  portion  of  prejudice  and  feeling 
into  the  debate,  when,  from  the  very  structure  of  our 
nature,  we  ought  to  anticipate  the  circumstance  as  a 
probability,  and  when  we  are  admonished  by  the  evidence 
of  our  senses  that  it  is  a  fact.  How  can  we  make  profes- 
sions for  ourselves,  and  offer  exhortations  to  the  house, 
that  no  influence  should  be  felt  but  that  of  duty,  and  no 
guide  respected  but  that  of  the  understanding,  while  the 
peal  to  rally  every  passion  of  man  is  continually  ringing 
in  our  ears.  Our  understandings  have  been  addressed,  it 
is  true,  and  with  ability  and  effect;  but,  I  demand,  has 
any  corner  of  the  heart  been  left  unexplored?  It  has  been 
ransacked  to  find  auxiliary  arguments;  and,  when  that 


24  Mr.  Ameses  Speech  on 

attempt  failed,  to  awaken  the  sensibility,  that  would 
require  none.  Every  prejudice  and  feeling  has  been  sum- 
moned to  listen  to  some  peculiar  style  of  address;  and  yet 
we  seem  to  believe,  and  to  consider  a  doubt  as  an  affront, 
that  we  are  strangers  to  any  influence  but  that  of  unbiassed 
reason. 

It  would  be  strange,  that  a  subject,  which  has  roused 
in  turn  all  the  passions  of  the  country,  should  be  discussed 
without  the  interference  of  any  of  our  own.  We  are  men, 
and  therefore  not  exempt  from  those  passions:  as  citizens 
and  representatives,  we  feel  the  interest  that  must  excite 
them.  The  hazard  of  great  interests  cannot  fail  to  agitate 
strong  passions:  we  are  not  disinterested;  it  is  impossible 
we  should  be  dispassionate.  The  warmth  of  such  feelings 
may  becloud  the  judgment,  and,  for  a  time,  pervert  the 
understanding.  But  the  public  sensibility,  and  our  own, 
has  sharpened  the  spirit  of  inquiry,  and  given  an  animation 
to  the  debate.  The  public  attention  has  been  quickened 
to  mark  the  progress  of  the  discussion,  and  its  judgment, 
often  hasty  and  erroneous  on  first  impressions,  has  become, 
solid  and  enlightened  at  last.  Our  result  will,  I  hope,  on 
that  account,  be  the  safer  and  more  mature,  as  well  as 
more  accordant  with  that  of  the  nation.  The  only  constant 
agents  in  political  affairs  are  the  passions  of  men.  Shall 
we  complain  of  our  nature;  shall  we  say  that  man  ought 
to  have  been  made  otherwise.  It  is  right  already,  because 
he,  from  whom  we  derive  our  nature,  ordained  it  so; 
and  because,  thus  made  and  thus  acting,  the  cause  of 
truth  and  the  public  good  is  the  more  surely  promoted. 

But  an  attempt  has  been  made  to  produce  an  influence 
of  a  nature  more  stubborn,  and  more  unfriendly  to  truth. 
It  is  very  unfairly  pretended,  that  the  constitutional  right 
of  this  house  is  at  stake,  and  to  be  asserted  and  preserved 
only  by  a  vote  in  the  negative.  We  hear  it  said,  that  this 
is  a  struggle  for  liberty,  a  manly  resistance  against  the 


the  British  Treaty.  25 

design  to  nullify  this  assembly,  and  to  make  it  a  cypher 
in  the  government :  that  the  president  and  senate,  the 
numerous  meetings  in  the  cities,  and  the  influence  of  the 
general  alarm  of  the  country,  are  the  agents  and  instru- 
ments of  a  scheme  of  coercion  and  terror,  to  force  the 
treaty  down  our  throats,  though  we  loath  it,  and  in  spite 
of  the  clearest  convictions  of  duty  and  conscience. 

It  is  necessary  to  pause  here,  and  inquire,  whether 
suggestions  of  this  kind  be  not  unfair  in  their  very  texture 
and  fabric,  and  pernicious  in  all  their  influences.  They 
oppose  an  obstacle  in  the  path  of  inquiry,  not  simply 
discouraging,  but  absolutely  insurmountable.  They  will 
not  yield  to  argument;  for,  as  they  were  not  reasoned  up, 
they  cannot  be  reasoned  down.  They  are  higher  than  a 
Chinese  wall  in  truth's  way,  and  built  of  materials  that 
are  indestructible.  While  this  remains,  it  is  vain  to  say 
to  this  mountain,  be  thou  cast  into  the  sea.  For  I  ask  of 
the  men  of  knowledge  of  the  world,  whether  they  would 
not  hold  him  for  a  blockhead,  that  should  hope  to  prevail 
in  an  argument,  whose  scope  and  object  it  is  to  mortify 
the  self-love  of  the  expected  proselyte?  I  ask  further, 
when  such  attempts  have  been  made,  have  they  not  failed 
of  success?  The  indignant  heart  repels  a  conviction,  that 
is  believed  to  debase  it. 

The  self-love  of  an  individual  is  not  warmer  in  its  sense, 
nor  more  constant  in  its  action,  than  what  is  called  in 
French  Pesprit  du  corps,  or  the  self-love  of  an  assembly; 
that  jealous  affection  which  a  body  of  men  is  always  found 
to  bear  towards  its  own  prerogatives  and  power.  I  will 
not  condemn  this  passion.  Why  should  we  urge  an 
unmeaning  censure,  or  yield  to  groundless  fears  that 
truth  and  duty  will  be  abandoned,  because  men  in  a 
public  assembly  are  still  men,  and  feel  that  esprit  du  corps 
which  is  one  of  the  laws  of  their  nature?  Still  less  should 
we  despond  or   complain,  if  we  reflect,  that  this  very 

Vol.  II.  D 


26  Mr,  Ames's  Speech  on 

spirit  is  a  guardian  instinct  that  watches  over  the  life  of 
this  assembly.  It  cherishes  the  principle  of  self- preserva- 
tion, and  without  its  existence,  and  its  existence  with  all 
the  strength  we  see  it  possess,  the  privileges  of  the  repre- 
sentatives of  the  people,  and,  mediately,  the  liberty  of  the 
people  would  not  be  guarded,  as  they  are,  with  a  vigilance 
that  never  sleeps,  and  an  unrelaxing  constancy  and 
courage. 

If  the  consequences  most  unfairly  attributed  to  the  vote 
in  the  affirmative  were  not  chimerical,  and  worse,  for  they 
are  deceptive,  I  should  think  it  a  reproach  to  be  found  even 
moderate  in  my  zeal  to  assert  the  constitutional  powers  of 
this  assembly;  and  whenever  they  shall  be  in  real  danger, 
the  present  occasion  affords  proof,  that  there  will  be  no 
want  of  advocates  and  champions. 

Indeed  so  prompt  are  these  feelings,  and,  when  once 
roused,  so  difficult  to  pacify,  that,  if  we  could  prove  the 
alarm  was  groundless,  the  prejudice  against  the  appropria- 
tions may  remain  on  the  mind,  and  it  may  even  pass  for  an 
act  of  prudence  and  duty  to  negative  a  measure,  which 
was  lately  believed  by  ourselves,  and  may  hereafter  be 
misconceived  by  others,  to  encroach  upon  the  powers  of 
the  house.  Principles  that  bear  a  remote  affinity  with 
usurpation  on  those  powers  will  be  rejected,  not  merely 
as  errors,  but  as  wrongs.  Our  sensibility  will  shrink 
from  a  post,  where  it  is  possible  it  may  be  wounded,  and 
be  inflamed  by  the  slightest  suspicion  of  an  assault. 

While  these  prepossessions  remain,  all  argument  is 
useless:  it  may  be  heard  with  the  ceremony  of  attention, 
and  lavish  its  own  resources,  and  the  patience  it  wearies  to 
no  manner  of  purpose.  The  ears  may  be  open,  but  the 
mind  will  remain  locked  up,  and  every  pass  to  the  under- 
standing guarded.  Unless  therefore  this  jealous  and 
repulsive  fear  for  the  rights  of  the  house  can  be  allayed,  I 
will  not  ask  a  hearing. 


the  British  Treaty,  27 

I  cannot  press  this  topic  too  far;  I  cannot  address  my- 
self with  too  much  emphasis  to  the  magnanimity  and  can- 
dour of  those  who  sit  here,  to  suspect  their  own  feelings* 
and  while  they  do,  to  examine  the  grounds  of  their  alarm. 
I  repeat  it,  we  must  conquer  our  persuasion,  that  this  body 
has  an  interest  in  one  side  of  the  question  more  than  the 
other,  before  we  attempt  to  surmount  our  objections.  On 
most  subjects,  and  solemn  ones  too,  perhaps  in  the  most 
solemn  of  all,  we  form  our  creed  more  from  inclination 
than  evidence. 

Let  me  expostulate"  with  gentlemen  to  admit,  if  it  be 
only  by  way  of  supposition,  and  for  a  moment,  that  it  is 
barely  possible  they  have  yielded  too  suddenly  to  their 
alarms  for  the  powers  of  this  house;  that  the  addresses, 
which  have  been  made  with  such  variety  of  forms,  and 
with  so  great  dexterity  in  some  of  them,  to  all  that  is 
prejudice  and  passion  in  the  heart,  are  either  the  effects 
or  the  instruments  of  artifice  and  deception,  and  then  let 
them  see  the  subject  once  more  in  its  singleness  and 
simplicity. 

It  will  be  impossible,  on  taking  a  fair  review  of  the  sub- 
ject, to  justify  the  passionate  appeals  that  have  been  made 
to  us  to  struggle  for  our  liberties  and  rights,  and  the 
solemn  exhortations  to  reject  the  proposition,  said  to  be 
concealed  in  that  on  your  table,  to  surrender  them  for 
ever.  In  spite  of  this  mock  solemnity,  I  demand,  if  the 
house  will  not  concur  in  the  measure  to  execute  the 
treaty,  what  other  course  shall  we  take?  How  many  ways 
of  proceeding  lie  open  before  us? 

In  the  nature  of  things,  there  are  but  three:  we  are  either 
to  make  the  treaty,  to  observe  it,  or  break  it.  It  would  be 
absurd  to  say,  we  will  do  neither.  If  I  may  repeat  a  phrase 
already  so  much  abused,  we  are  under  coercion  to  do  one 
of  them;  and  we  have  no  power,  by  the  exercise  of  our 
discretion,  to  prevent  the  consequences  of  a  choice, 


28  Mr,  Ames's  Speech  on 

By  refusing  to  act,  we  choose:  the  treaty  will  be  broken 
and  fall  to  the  ground.  Where  is  the  fitness  then  of  reply- 
ing to  those  who  urge  upon  the  house  the  topics  of  duty 
and  policy,  that  they  attempt  to  force  the  treaty  down,  and 
to  compel  this  assembly  to  renounce  its  discretion,  and  to 
degrade  itself  to  the  rank  of  a  blind  and  passive  instru- 
ment in  the  hands  of  the  treaty-making  power.  In  case  we 
reject  the  appropriation,  we  do  not  secure  any  greater 
liberty  of  action,  we  gain  no  safer  shelter  than  before  from 
the  consequences  of  the  decision.  Indeed  they  are  not  to 
be  evaded.  It  is  neither  just  nor  manly  to  complain,  that 
the  treaty- making  power  has  produced  this  coercion  to 
act:  it  is  not  the  art  or  the  despotism  of  that  power,  it  is 
the  nature  of  things,  that  compels.  Shall  we,  dreading  to 
become  the  blind  instruments  of  power,  yield  ourselves 
the  blinder  dupes  of  mere  sounds  of  imposture?  Yet  that 
word,  that  empty  word,  coercion,  has  given  scope  to  an 
eloquence,  that  one  would  imagine  could  not  be  tired,  and 
did  not  choose  to  be  quieted. 

Let  us  examine  still  more  in  detail  the  alternatives  that 
are  before  us,  and  we  shall  scarcely  fail  to  see  in  still 
stronger  lights  the  futility  of  our  apprehensions  for  the 
power  and  liberty  of  the  house. 

If,  as  some  have  suggested,  the  thing,  called  a  treaty, 
is  incomplete,  if  it  has  no  binding  force  or  obligation,  the 
first  question  is,  will  this  house  complete  the  instrument, 
and,  by  concurring,  impart  to  it  that  force  which  it  wants. 

The  doctrine  has  been  avowed,  that  the  treaty,  though 
formally  ratified  by  the  executive  power  of  both  nations, 
though  published  as  a  law  for  our  own,  by  the  president's 
proclamation,  is  still  a  mere  proposition  submitted  to  this 
assembly,  no  way  distinguishable  in  point  of  authority  or 
obligation  from  a  motion  for  leave  to  bring  in  a  bill,  or 
any  other  original  act  of  ordinary  legislation.  This  doctrine, 
so  novel  in  our  country,  yet  so  dear  to  many  precisely  for 


the  British  Treaty.  29 

the  reason,  that  in  the  contention  for  power  victory  is 
always  dear,  is  obviously  repugnant  to  the  very  terms  as 
well  as  the  fair  interpretation  of  our  own  resolution.  (Mr. 
Blount's.)  We  declare,  that  the  treaty- making  power  is 
exclusively  vested  in  the  president  and  senate,  and  not  in 
this  house.  Need  I  say,  that  we  fly  in  the  face  of  that 
resolution,  when  we  pretend,  that  the  acts  of  that  power 
are  not  valid,  until  we  have  concurred  in  them.  It  would 
be  nonsense,  or  worse,  to  use  the  language  of  the  most 
glaring  contradiction,  and  to  claim  a  share  in  a  power, 
which  we  at  the  same  time  disclaim,  as  exclusively  vested 
in  other  departments.  What  can  be  more  strange  than  to 
say,  that  the  compacts  of  the  president  and  senate  with 
foreign  nations  are  treaties,  without  our  agency,  and  yet 
that  those  compacts  want  all  power  and  obligation,  until 
they  are  sanctioned  by  our  concurrence.  It  is  not  my 
design  in  this  place,  if  at  all,  to  go  into  the  discussion  of 
this  part  of  the  subject.  I  will,  at  least  for  the  present,  take 
it  for  granted,  that  this  monstrous  opinion  stands  in  little 
need  of  remark,  and,  if  it  does,  lies  almost  out  of  the 
reach  of  refutation. 

But,  say  those  who  hide  the  absurdity  under  the  cover 
of  ambiguous  phrases,  have  we  no  discretion?  and  if  we 
have,  are  we  not  to  make  use  of  it  in  judging  of  the  expe- 
diency or  inexpediency  of  the  treaty?  Our  resolution 
claims  that  privilege,  and  we  cannot  surrender  it  without 
equal  inconsistency  and  breach  of  duty. 

If  there  be  any  inconsistency  in  this  case,  it  lies  not  in 
making  the  appropriations  for  the  treaty,  but  in  the  resolu- 
tion itself.  Let  us  examine  it  more  nearly.  A  treaty  is  a 
bargain  between  nations,  binding  in  good  faith:  and  what 
makes  a  bargain?  The  assent  of  the  contracting  parties. 
We  allow,  that  the  treaty  power  is  not  in  this  house;  this 
house  has  no  share  in  contracting,  and  is  not  a  party:  of 
consequence  the  president  and  senate  alone  may  make  a 


30  Mr.  A7iies^s  Speech  on 

treaty  that  is  binding  in  good  faith.  We  claim,  however, 
say  the  gentlemen,  a  right  to  judge  of  the  expediency  of 
treaties;  that  is  the  constitutional  province  of  our  discre- 
tion. Be  it  so.  What  follows?  Treaties,  when  adjudged 
by  us  to  be  inexpedient,  fall  to  the  ground,  and  the  public 
faith  is  not  hurt.  This,  incredible  and  extravagant  as  it 
may  seem,  is  asserted.  The  amount  of  it,  in  plainer 
language,  is  this;  the  president  and  senate  are  to  make 
national  bargains,  and  this  house  has  nothing  to  do  in 
making  them.  But  bad  bargains  do  not  bind  this  house, 
and  of  inevitable  consequence,  do  not  bind  the  nation. 
When  a  national  bargain,  called  a  treaty,  is  made,  its 
binding  force  does  not  depend  on  the  making,  but  upon 
our  opinion  that  it  is  good.  As  our  opinion  on  the  matter 
can  be  known  and  declared  only  by  ourselves,  when  sitting 
in  our  legislative  capacity,  the  treaty,  though  ratified,  and 
as  we  choose  to  term  it,  made,  is  hung  up  in  suspense,  till 
our  sense  is  ascertained.  We  condemn  the  bargain,  and 
it  falls,  though,  as  we  say,  our  faith  does  not.  We  approve 
a  bargain  as  expedient,  and  it  stands  firm,  and  binds  the 
nation.  Yet,  even  in  this  latter  case,  its  force  is  plainly  not 
derived  from  the  ratification  by  the  treaty-making  power, 
but  from  our  approbation.  Who  will  trace  these  infer- 
ences, and  pretend,  that  we  have  no  share,  according  to 
the  argument,  in  the  treaty-making  power?  These 
opinions,  nevertheless,  have  been  advocated  with  infinite 
zeal  and  perseverance.  Is  it  possible  that  any  man  can  be 
hardy  enough  to  avow  them,  and  their  ridiculous  conse- 
quences? 

Let  me  hasten  to  suppose  the  treaty  is  considered  as 
already  made,  and  then  the  alternative  is  fairly  present  to 
the  mind,  whether  we  will  observe  the  treaty,  or  break  it. 
This,  in  fact,  is  the  naked  question. 

If  we  choose  to  observe  it  with  good  faith,  our  course  is 
obvious.  Whatever  is  stipulated  to  be  done  by  the  nation, 


the  British  Treaty*  31 

must  be  complied  with.  Our  agency,  if  it  should  be 
requisite,  cannot  be  properly  refused.  And  I  do  not  see 
why  it  is  not  as  obligatory  a  rule  of  conduct  for  the  legis- 
lature as  for  the  courts  of  law. 

I  cannot  lose  this  opportunity  to  remark,  that  the  coer- 
cion, so  much  dreaded  and  declaimed  against,  appears  at 
length  to  be  no  more  than  the  authority  of  principles,  the 
despotism  of  duty.  Gentlemen  complain  we  are  forced  to 
act  in  this  way;  we  are  forced  to  swallow  the  treaty.  It  is 
very  true,  unless  we  claim  the  liberty  of  abuse,  the  right  to 
act  as  we  ought  not.  There  is  but  one  right  way  open  for 
us:  the  laws  of  morality  and  good  faith  have  fenced  up 
every  other.  What  sort  of  liberty  is  that,  which  we  pre- 
sume to  exercise  against  the  authority  of  those  laws?  It  is 
for  tyrants  to  complain,  that  principles  are  restraints,  and 
that  they  have  no  liberty,  so  long  as  their  despotism  has 
limits.  These  principles  will  be  unfolded  by  examining 
the  remaining  question: 

Shall  we  break  the  Treaty? 

The  treaty  is  bad,  fatally  bad,  is  the  cry.  It  sacrifices 
the  interest,  the  honour,  the  independence  of  the  United 
States,  and  the  faith  of  our  engagements  to  France.  If  we 
listen  to  the  clamour  of  party  intemperance,  the  evils  are 
of  a  number  not  to  be  counted,  and  of  a  nature  not  to  be 
borne,  even  in  idea.  The  language  of  passion  and  exagge- 
ration may  silence  that  of  sober  reason  in  other  places;  it 
has  not  done  it  here.  The  question  here  is,  whether  the 
treaty  be  really  so  very  fatal,  as  to  oblige  the  nation  to 
break  its  faith.  I  admit  that  such  a  treaty  ought  not  to  be 
executed.  I  admit  that  self-preservation  is  the  first  law  of 
society,  as  well  as  of  individuals.  It  would  perhaps  be 
deemed  an  abuse  of  terms  to  call  that  a  treaty,  which 
violates  such  a  principle.  I  wave  also,  for  the  present,  any 
inquiry,  what  departments  shall  represent  the  nation,  and 
annul  the  stipulations  of  a  treaty.  I  content  myself  with 


32  Mr.  Ames's  Speech  on 

pursuing  the  inquiry,  whether  the  nature  of  the  compact 
be  such  as  to  justify  our  refusal  to  carry  it  into  effect. 
A  treaty  is  the  promise  of  a  nation.  Now,  promises  do 
not  always  bind  him  that  makes  them. 

But  I  lay  down  two  rules,  which  ought  to  guide  us  in 
this  case.  The  treaty  must  appear  to  be  bad  not  merely  in 
the  petty  details,  but  in  its  character,  principle,  and  mass: 
and  in  the  next  place,  this  ought  to  be  ascertained  by  the 
decided  and  general  concurrence  of  the  enlightened  public. 
I  confess  there  seems  to  me  something  very  like  ridicule 
thrown  over  the  debate  by  the  discussion  of  the  articles  in 
detail. 

The  undecided  point  is,  shall  we  break  our  faith?  And 
while  our  country,  and  enlightened  Europe,  await  the 
issue  with  more  than  curiosity,  we  are  employed  to  gather, 
piecemeal,  and  article  by  article,  from  the  instrument,  a 
justification  for  the  deed  by  trivial  calculations  of  com- 
mercial profit  and  loss.  This  is  little  worthy  of  the  sub- 
ject, of  this  body,  or  of  the  nation.  If  the  treaty  is  bad,  it 
will  appear  to  be  so  in  its  mass.  Evil  to  a  fatal  extreme, 
if  that  be  its  tendency,  requires  no  proof:  it  brings  it. 
Extremes  speak  for  themselves,  and  make  their  own  law. 
What  if  the  direct  voyage  of  American  ships  to  Jamaica 
with  horses  or  lumber  might  net  one  or  two  per  cent, 
more  than  the  present  trade  to  Surinam,  would  the  proof 
of  the  fact  avail  any  thing  in  so  grave  a  question  as  the 
violation  of  the  public  engagements? 

It  is  in  vain  to  allege,  that  our  faith  plighted  to  France 
is  violated  by  this  new  treaty.  Our  prior  treaties  are 
expressly  saved  from  the  operation  of  the  British  treaty. 
And  what  do  those  mean,  who  say,  that  our  honour  was 
forfeited  by  treating  at  all,  and  especially  by  such  a  treaty? 
Justice,  the  laws,  and  practice  of  nations,  a  just  regard  for 
peace  as  a  duty  to  mankind,  and  the  known  wish  of  our 
citizens,  as  well  as  that  self-respect  which  required  it  of 


the  British  Treatij.  S3 

the  nation  to  act  with  dignity  and  moderation,  all  these 
forbad  an  appeal  to  arms  before  we  had  tried  the  effect  of 
negotiation.  The  honour  of  the  United  States  was  saved, 
not  forfeited  by  treating.  The  treaty  itself,  by  its  stipula- 
tions for  the  posts,  for  indemnity,  and  for  a  due  observation 
of  our  neutral  rights,  has  justly  raised  the  character  of 
the  nation.  Never  did  the  name  of  America  appear  in 
Europe  with  more  lustre,  than  upon  the  event  of  ratifying 
this  instrument.  The  fact  is  of  a  nature  to  overcome  all 
contradiction. 

But  the  independence  of  the  country — we  are  colonists 
again.  This  is  the  cry  of  the  very  men  who  tell  us,  that 
France  will  resent  our  exercise  of  the  rights  of  an  inde- 
pendent nation  to  adjust  our  wrongs  with  an  aggressor, 
without  giving  her  the  opportunity  to  say,  those  wrongs 
shall  subsist  and  shall  not  be  adjusted.  This  is  an  admi- 
rable specimen  of  independence.  The  treaty  with  Great 
Britain,  it  cannot  be  denied,  is  unfavourable  to  this 
strange  sort  of  independence. 

Few  men  of  any  reputation  for  sense  among  those  who 
say  the  treaty  is  bad,  will  put  that  reputation  so  much  at 
hazard  as  to  pretend,  that  it  is  so  extremely  bad  as  to 
warrant  and  require  a  violation  of  the  public  faith.  The 
proper  ground  of  the  controversy,  therefore,  is  really 
unoccupied  by  the  opposers  of  the  treaty;  as  the  very 
hinge  of  the  debate  is  on  the  point,  not  of  its  being  good 
or  otherwise,  but  whether  it  is  intolerably  and  fatally  per- 
nicious. If  loose  and  ignorant  declaimers  have  any  where 
asserted  the  latter  idea,  it  is  too  extravagant,  and  too 
solidly  refuted,  to  be  repeated  here.  Instead  of  any  attempt 
to  expose  it  still  further,  I  will  say,  and  I  appeal  with 
confidence  to  the  candour  of  many  opposers  to  the  treaty 
to  acknowledge,  that,  if  it  had  been  permitted  to  go  into 
operation  silently,  like  our  other  treaties,  so  little  altera- 
tion of  any  sort  would  be  made  bv  it  in  the  great  mass  of 

Vol.  .11  E 


34  Mr,  Ameses  Speech  on 

our  commercial  and  agricultural  concerns,  that  it  would 
not  be  generally  discovered  by  its  effects  to  be  in  force, 
during  the  term  for  which  it  was  contracted.  I  place  con- 
siderable reliance  on  the  weight  men  of  candour  will  give 
to  this  remark,  because  I  believe  it  to  be  true,  and  little 
short  of  undeniable.  When  the  panic  dread  of  the  treaty 
shall  cease,  as  it  certainly  must,  it  will  be  seen  through 
another  medium.  Those  who  shall  make  search  into  the 
articles  for  the  cause  of  their  alarms,  will  be  so  far  from 
finding  stipulations  that  will  operate  fatally,  that  they  will 
discover  few  of  them  that  will  have  any  lasting  operation 
at  all.  Those  which  relate  to  the  disputes  between  the  two 
countries  will  spend  their  force  upon  the  subjects  in 
dispute,  and  extinguish  them.  The  commercial  articles 
are  more  of  a  nature  to  confirm  the  existing  state  of  things, 
than  to  change  it.  The  treaty  alarm  was  purely  an  address 
to  the  imagination  and  prejudices  of  the  citizens,  and  not 
on  that  account  the  less  formidable.  Objections  that  pro- 
ceed upon  error  in  fact  or  calculation,  may  be  traced  and 
exposed;  but  such  as  are  drawn  from  the  imagination,  or 
addressed  to  it,  elude  definition,  and  return  to  domineer 
over  the  mind,  after  having  been  banished  from  it  by 
truth. 

I  will  not  so  far  abuse  the  momentary  strength  that  is 
lent  to  me  by  the  zeal  of  the  occasion,  as  to  enlarge  upon 
the  commercial  operation  of  the  treaty.  I  proceed  to  the 
second  proposition,  which  I  have  stated  as  indispensably 
requisite  to  a  refusal  of  the  performance  of  a  treaty:  will 
the  state  of  public  opinion  justify  the  deed? 

No  government,  not  even  a  despotism,  will  break  its 
faith,  without  some  pretext;  and  it  must  be  plausible,  it 
must  be  such  as  will  carry  the  public  opinion  along  with 
it.  Reasons  of  policy,  if  not  of  morality,  dissuade  even 
Turkey  and  Algiers  from  breaches  of  treaty  in  mere 
wantonness  of  perfidy,  in  open  contempt  of  the  reproaches 


the  British  Treaty.  35 

of  their  subjects.  Surely  a  popular  government  will  not 
proceed  more  arbitrarily,  as  it  is  more  free;  nor  with  less 
shame  or  scruple,  in  proportion  as  it  has  better  morals. 
It  will  not  proceed  against  the  faith  of  treaties  at  all,  unless 
the  strong  and  decided  sense  of  the  nation  shall  pronounce, 
not  simply  that  the  treaty  is  not  advantageous,  but  that  it 
ought  to  be  broken  and  annulled. 

Such  a  plain  manifestation  of  the  sense  of  the  citizens  is 
indispensably  requisite;  first,  because,  if  the  popular 
apprehensions  be  not  an  infallible  criterion  of  the  disad- 
vantages of  the  instrument,  their  acquiescence  in  the 
operation  of  it  is  an  irrefragable  proof,  that  the  extreme 
case  does  not  exist,  which  alone  could  justify  our  setting 
it  aside. 

In  the  next  place,  this  approving  opinion  of  the  citizens 
is  requisite,  as  the  best  preventive  of  the  ill  consequences 
of  a  measure  always  so  delicate,  and  often  so  hazardous. 
Individuals  would,  in  that  case  at  least,  attempt  to  repel 
the  opprobrium  that  would  be  thrown  upon  congress  by 
those  who  will  charge  it  with  perfidy.  They  would  give 
weight  to  the  testimony  of  facts,  and  the  authority  of 
principles,  on  which  the  government  would  rest  its  vindi- 
cation: and  if  war  should  ensue  upon  the  violation,  our 
citizens  would  not  be  divided  from  their  government,  nor 
the  ardour  of  their  courage  be  chilled  by  the  consciousness 
of  injustice,  and  the  sense  of  humiliation,  that  sense  which 
makes  those  despicable  who  know  they  are  despised. 

I  add  a  third  reason,  and  with  me  it  has  a  force  that  no 
words  of  mine  can  augment,  that  a  government  wantonly 
refusing  to  fulfil  its  engagement  is  the  corrupter  of  its 
citizens.  Will  the  laws  continue  to  prevail  in  the  hearts 
of  the  people,  when  the  respect  that  gives  them  efficacy 
is  withdrawn  from  the  legislators?  How  shall  we  punish 
vice,  while  we  practise  it?  We  have  not  force,  and  vain 
will  be  our  reliance,  when  we  have  forfeited  the  resources 


36  Mr.  Ameses  Speech  mi 

of  opinion.  To  weaken  government,  and  to  corrupt  morals, 
are  effects  of  a  breach  of  faith  not  to  be  prevented;  and 
from  effects  they  become  causes,  producing  with  augment- 
ed activity,  more  disorder  and  more  corruption:  order  will 
be  disturbed,  and  the  life  of  the  public  liberty  shortened. 

And  who,  I  would  inquire,  is  hardy  enough  to  pretend, 
that  the  public  voice  demands  the  violation  of  the  treaty? 
The  evidence  of  the  sense  of  the  great  mass  of  the  nation 
is  often  equivocal;  but  when  was  it  ever  manifested  with 
more  energy  and  precision  than  at  the  present  moment? 
The  voice  of  the  people  is  raised  against  the  measure  of 
refusing  the  appropriations.  If  gentlemen  should  urge, 
nevertheless,  that  all  this  sound  of  alarm  is  a  counterfeit 
expression  of  the  sense  of  the  public,  I  will  proceed  to 
other  proofs.  Is  the  treaty  ruinous  to  our  commerce? 
What  has  blinded  the  eyes  of  the  merchants  and  traders? 
Surely  they  are  not  enemies  to  trade,  nor  ignorant  of  their 
own  interests.  Their  sense  is  not  so  liable  to  be  mistaken 
as  that  of  a  nation,  and  they  are  almost  unanimous.  The 
articles  stipulating  the  redress  of  our  injuries  by  captures 
on  the  sea,  are  said  to  be  delusive.  By  whom  is  this  said? 
The  very  men  whose  fortunes  are  staked  upon  the  com- 
petency of  that  redress,  say  no  such  thing.  They  wait 
with  anxious  fear,  lest  you  should  annul  that  compact,  on 
which  all  their  hopes  are  rested. 

Thus  we  offer  proof,  little  short  of  absolute  demonstra- 
tion, that  the  voice  of  our  country  is  raised  not  to  sanction, 
but  to  deprecate,  the  non-performance  of  our  engage- 
ments. It  is  not  the  nation,  it  is  one,  and  but  one,  branch 
of  the  government  that  proposes  to  reject  them.  With 
this  aspect  of  things,  to  reject  is  an  act  of  desperation. 

I  shall  be  asked,  why  a  treaty  so  good  in  some  articles, 
and  so  harmless  in  others,  has  met  with  such  unrelenting 
opposition?  and  how  the  clamours  against  it  from  New- 
Hampshire  to  Georgia  can  be  accounted  for?  The  appre- 


the  British  Treaty.  37 

hensionsso  extensively  diffused,  on  its  first  publication, 
will  be  vouched  as  proof,  that  the  treaty  is  bad,  and  that 
the  people  hold  it  in  abhorrence. 

I  am  not  embarrassed  to  find  the  answer  to  this  insinu- 
ation. Certainly  a  foresight  of  its  pernicious  operation 
could  not  have  created  all  the  fears  that  were  felt  or 
affected:  the  alarm  spread  faster  than  the  publication  of 
the  treaty:  there  were  more  critics  than  readers.  Besides, 
as  the  subject  was  examined,  those  fears  have  subsided. 
The  movements  of  passion  are  quicker  than  those  of  the 
understanding:  we  are  to  search  for  the  causes  of  first 
impressions,  not  in  the  articles  of  this  obnoxious  and 
misrepresented  instrument,  but  in  the  state  of  the  public 
feeling. 

The  fervour  of  the  revolution  war  had  not  entirely 
cooled,  nor  its  controversies  ceased,  before  the  sensibility 
of  our  citizens  was  quickened  with  a  tenfold  vivacity  b)r 
a  new  and  extraordinary  subject  of  irritation.  One  of  the 
two  great  nations  of  Europe  underwent  a  change,  which 
has  attracted  all  our  wonder,  and  interested  all  our  sym- 
pathy. Whatever  they  did,  the  zeal  of  many,  went  with 
them,  and  often  went  to  excess.  These  impressions  met 
with  much  to  inflame,  and  nothing  to  restrain  them.  In 
our  newspapers,  in  our  feasts,  and  some  of  our  elections, 
enthusiasm  was  admitted  a  merit,  a  test  of  patriotism; 
and  that  made  it  contagious.  In  the  opinion  of  party,  we 
<:ould  not  love  or  hate  enough.  I  dare  say,  in  spite  of  all 
the  obloquy  it  may  provoke,  we  were  extravagant  in  both. 
It  is  my  right  to  avow,  that  passions  so  impetuous,  enthu- 
siasm so  wild,  could  not  subsist  without  disturbing  the 
sober  exercise  of  reason,  without  putting  at  risk  the  peace 
and  precious  interests  of  our  country.  They  were  hazarded. 
I  will  not  exhaust  the  little  breath  I  have  left,  to  say  how 
much,  nor  by  whom,  or  by  what  means  they  were  rescued 
from  the  sacrifice.  Shall  I  be  called  upon  to  offer  my 


38  Mr.  Ameses  Speech  on 

proofs?  They  are  here,  they  are  every  where.  No  one  has 
forgotten  the  proceedings  of  1794.  No  one  has  forgotten 
the  captures  of  our  vessels,  and  the  imminent  danger  of 
war.  The  nation  thirsted  not  merely  for  reparation  but 
vengeance.  Suffering  such  wrongs  and  agitated  by  such 
resentments,  was  it  in  the  power  of  any  words  of  compact, 
or  could  any  parchment  with  its  seals  prevail  at  once  to 
tranquillize  the  people?  It  was  impossible.  Treaties  in 
England  are  seldom  popular,  and  least  of  all,  when  the 
stipulations  of  amity  succeed  to  the  bitterness  of  hatred. 
Even  the  best  treaty,  though  nothing  be  refused,  will 
choak  resentment,  but  not  satisfy  it.  Every  treaty  is  as 
sure  to  disappoint  extravagant  expectations,  as  to  disarm 
extravagant  passions.  Of  the  latter,  hatred  is  one  that 
takes  no  bribes:  they  who  are  animated  by  the  spirit  of 
revenge,  will  not  be  quieted  by  the  possibility  of  profit. 

Why  do  they  complain,  that  the  West  Indies  are  not 
laid  open?  Why  do  they  lament,  that  any  restriction  is 
stipulated  on  the  commerce  of  the  East  Indies?  Why  do 
they  pretend,  that  if  they  reject  this,  and  insist  upon  more, 
more  will  .be  accomplished?  Let  us  be  explicit — more 
would  not  satisfy.  If  all  was  granted,  would  not  a  treaty 
of  amity  with  Great  Britain  still  be  obnoxious?  Have  we 
not  this  instant  heard  it  urged  against  our  envoy,  that  he 
was  not  ardent  enough  in  his  hatred  of  Great  Britain?  A 
treaty  of  amity  is  condemned  because  it  was  not  made  by  a 
foe,  and  in  the  spirit  of  one.  The  same  gentleman,  at  the 
same  instant,  repeats  a  very  prevailing  objection,  that  no 
treaty  should  be  made  with  the  enemy  of  France.  No 
treaty  exclaim  others,  should  be  made  with  a  monarch  or 
a  despot:  there  will  be  no  naval  security  while  those  sea 
robbers  domineer  on  the  ocean:  their  den  must  be  de- 
stroyed: that  nation  must  be  extirpated. 

I  like  this,  sir,  because  it  is  sincerity.  With  feelings 
such  as  these,  we  do  not  pant  for  treaties:  such  passions 


the  British  Treaty.  39 

seek  nothing,  and  will  be  content  with  nothing,  but  the 
destruction  of  their  object.  If  a  treaty  left  king  George 
his  island,  it  would  not  answer,  not  if  he  stipulated  to  pay- 
rent  for  it.  It  has  been  said,  the  world  ought  to  rejoice,  if 
Britain  was  sunk  in  the  sea;  if,  where  there  are  now  men 
and  wealth,  and  laws,  and  liberty,  there  was  no  more  than 
a  sand  bank  for  the  sea  monsters  to  fatten  on,  a  space  for 
the  storms  of  the  ocean  to  mingle  in  conflict. 

I  object  nothing  to  the  good  sense  or  humanity  of  all 
this.  I  yield  the  point,  that  this  is  a  proof  that  the  age  of 
reason  is  in  progress.  Let  it  be  philanthropy,  let  it  be 
patriotism,  if  you  will;  but  it  is  no  indication,  that  any 
treaty  would  be  approved.  The  difficulty  is  not  to  over- 
come the  objections  to  the  terms;  it  is  to  restrain  the 
repugnance  to  any  stipulations  of  amity  with  the  party. 

Having  alluded  to  the  rival  of  Great  Britain,  I  am  not 
unwilling  to  explain  myself:  I  affect  no  concealment,  and 
I  have  practised  none.  While  those  two  great  nations 
agitate  all  Europe  with  their  quarrels,  they  will  both 
equally  endeavour  to  create  an  influence  in  America:  each 
will  exert  all  its  arts  to  range  our  strength  on  its  own  side. 
How  is  this  to  be  effected?  our  government  is  a  demo- 
cratical  republic:  it  will  not  be  disposed  to  pursue  a 
system  of  politics,  in  subservience  to  either  France  or 
England,  in  opposition  to  the  general  wishes  of  the  citi- 
zens: and,  if  congress  should  adopt  such  measures,  they 
would  not  be  pursued  long,  nor  with  much  success.  From 
the  nature  of  our  government,  popularity  is  the  instrument 
of  foreign  influence.  Without  it,  all  is  labour  and  disap- 
pointment: with  that  mighty  auxiliary,  foreign  intrigue 
finds  agents,  not  only  volunteers,  but  competitors  for 
employment,  and  any  thing  like  reluctance  is  understood 
to  be  a  crime.  Has  Britain  this  means  of  influence?  Cer- 
tainly not.  If  her  gold  could  buy  adherents,  their  becom- 
ing such  would  deprive  them  of  all  political  power  and 


40  Mr.  Ames's  Speech  an 

importance.  They  would  not  wield  popularity  as  a  wea- 
pon, but  would  fall  under  it.  Britain  has  no  influence,  and 
for  the  reasons  just  given  can  have  none.  She  has  enough; 
and  God  forbid  she  ever  should  have  more.  France,  pos- 
sessed of  popular  enthusiasm,  of  party  attachments,  has 
had,  and  still  has,  too  much  influence  on  our  politics:  any 
foreign  influence  is  too  much  and  ought  to  be  destroyed. 
I  detest  the  man,  and  disdain  the  spirits,  that  can  bend  to 
a  mean  subserviency  to  the  view  of  any  nation.  It  is  enough 
to  be  Americans:  that  character  comprehends  our  duties, 
and  ought  to  engross  our  attachments. 

But  I  would  not  be  misunderstood.  I  would  not  break 
the  alliance  with  France:  I  would  not  have  the  connection 
between  the  two  countries  even  a  cold  one.  It  should  be 
cordial  and  sincere;  but  I  would  banish  that  influence, 
which,  by  acting  on  the  passions  of  the  citizens,  may 
acquire  a  power  over  the  government. 

It  is  no  bad  proof  of  the  merit  of  the  treaty,  that  under 
all  these  unfavourable  circumstances,  it  should  be  so  well 
approved.  In  spite  of  first  impressions,  in  spite  of  misre- 
presentation and  party  clamor,  inquiry  has  multiplied  its 
advocates;  and  at  last  the  public  sentiment  appears  to  me 
clearly  preponderating  to  its  side. 

On  the  most  careful  review  of  the  several  branches  of 
the  treaty,  those  which  respect  political  arrangements,  the 
spoliations  on  our  trade,  and  the  regulation  of  commerce, 
there  is  little  to  be  apprehended;  the  evil,  aggravated  as 
it  is  by  party,  is  little  in  degree,  and  short  in  duration — ■ 
two  years  from  the  end  of  the  European  war.  I  ask,  and  I 
would  ask  the  question  significantly,  what  are  the  induce- 
ments to  reject  the  treaty?  What  great  object  is  to  be 
gained,  and  fairly  gained  by  it?  If,  however,  as  to  the 
merits  of  the  treaty,  candour  should  suspend  its  approba- 
tion, what  is  there  to  hold  patriotism  a  moment  in  balance 
as  to  the  violation  of  it?  Nothing.  I  repeat  confidently, 


the  British  Treaty.  41 

nothing.  There  is  nothing  before  us  in  that  event,  but 
confusion  and  dishonour. 

But  before  I  attempt  to  develop  those  consequences,  I 
must  put  myself  at  ease  by  some  explanation.  Nothing  is 
worse  received  among  men,  than  the  confutation  of  their 
opinions;  and,  of  these,  none  are  more  dear  or  more  vul- 
nerable than  their  political  opinions.  To  say,  that  a  propo- 
sition leads  to  shame  and  ruin,  is  almost  equivalent  to  a 
charge,  that  the  supporters  of  it  intend  to  produce  them. 
I  throw  myself  upon  the  magnanimity  and  candour  of 
those  who  hear  me.  I  cannot  do  justice  to  my  subject 
without  exposing,  as  forcibly  as  I  can,  all  the  evils  in 
prospect.  I  readily  admit,  that  in  every  science,  and  most 
of  all  in  politics,  error  springs  from  other  sources  than 
the  want  of  sense  or  integrity.  I  despise  indiscriminate 
professions  of  candour  and  respect.  There  are  individuals 
opposed  to  me,  of  whom  I  am  not  bound  to  say  any 
thing;  but  of  many,  perhaps  of  a  majority  of  the  opposers 
of  the  appropriations,  it  gives  me  pleasure  to  declare,  they 
possess  my  confidence  and  regard.  There  are  among  them 
individuals,  for  whom  I  entertain  a  cordial  affection. 

The  consequences  of  refusing  to  make  provision  for  the 
treaty  are  not  all  to  be  foreseen.  By  rejecting,  vast  in- 
terests are  committed  to  the  sport  of  the  winds:  chance 
becomes  the  arbiter  of  events,  and  it  is  forbidden  to  human 
foresight  to  count  their  number,  or  measure  their  extent. 
Before  we  resolve  to  leap  into  this  abyss,  so  dark  and  so 
profound,  it  becomes  us  to  pause,  and  reflect  upon  such 
of  the  dangers  as  are  obvious  and  inevitable.  If  this  assem- 
bly should  be  wrought  into  a  temper  to  defy  these  conse- 
quences, it  is  vain,  it  is  deceptive  to  pretend,  that  we  can 
escape  them.  It  is  worse  than  weakness  to  say,  that,  as  to 
public  faith,  our  vote  has  already  settled  the  question. 
Another  tribunal  than  our  own  is  already  erected:  the 
public  opinion,  not  merely  of  our  own  country,  but  of  the 
Vol.  II.  F 


42  Mr.  Ames's  Speech  on 

enlightened  world,  will  pronounce  a  judgment  that  we 
cannot  resist,  that  we  dare  not  even  affect  to  despise. 

Well  may  I  urge  it  to  men,  who  know  the  worth  of  cha- 
racter, that  it  is  no  trivial  calamity  to  have  it  contested.  Re- 
fusing to  do  what  the  treaty  stipulates  shall  be  done,  opens 
the  controversy.  Even  if  we  should  stand  justified  at  last, 
a  character  that  is  vindicated  is  something  worse  than  it 
stood  before,  unquestioned  and  unquestionable.  Like  the 
plaintiff'  in  an  action  of  slander,  we  recover  a  reputation 
disfigured  by  invective,  and  even  tarnished  by  too  much 
handling.  In  the  combat  for  the  honour  of  the  nation,  it 
may  receive  some  wounds,  which,  though  they  should 
heal,  will  leave  scars.  I  need  not  say,  for  surely  the  feel- 
ings of  every  bosom  have  anticipated,  that  we  cannot 
guard  this  sense  of  national  honour,  this  ever  living  fire, 
which  alone  keeps  patriotism  warm  in  the  heart,  with  a 
sensibility  too  vigilant  and  jealous.  If,  by  executing  the 
treaty,  there  is  no  possibility  of  dishonour,  and  if,  by 
rejecting,  there  is  some  foundation  for  doubt  and  for 
reproach,  it  is  not  for  me  to  measure;  it  is  for  your  own 
feelings  to  estimate  the  vast  distance  that  divides  the  one 
side  of  the  alternative  from  the  other. 

If  therefore  we  should  enter  on  the  examination  of  the 
question  of  duty  and  obligation  with  some  feelings  of 
prepossession,  I  do  not  hesitate  to  say,  they  are  such  as  we 
ought  to  have:  it  is  an  after  inquiry  to  determine,  whether 
they  are  such  as  ought  finally  to  be  resisted. 

The  resolution  (Mr.  Blount's)  is  less  explicit  than  the 
constitution.  Its  patrons  should  have  made  it  more  so,  if 
possible,  if  they  had  any  doubts,  or  meant  the  public 
should  entertain  none.  Is  it  the  sense  of  that  vote,  as  some 
have  insinuated,  that  we  claim  a  right,  for  any  cause  or 
no  cause  at  all,  but  our  own  sovereign  will  and  pleasure, 
to  refuse  to  execute,  and  thereby  to  annul  the  stipulations 
of  a  treaty?  that  we  have  nothing  to  regard  but  the  expe- 
diency or  inexpediency  of  the  measure,  being  absolutely 


the  British  Treaty.  43 

free  from  all  obligation  by  compact  to  give  it  our  sanction? 
A  doctrine  so  monstrous,  so  shameless,  is  refuted  by  being 
avowed.  There  are  no  words  you  could  express  it  in,  that 
would  not  convey  both  confutation  and  reproach.  It  would 
outrage  the  ignorance  of  the  tenth  century  to  believe;  it 
would  baffle  the  casuistry  of  a  papal  council  to  vindicate. 
I  venture  to  say  it  is  impossible.  No  less  impossible  that 
we  should  desire  to  assert  the  scandalous  privilege  of 
being  free,  after  we  have  pledged  our  honour. 

It  is  doing  injustice  to  the  resolution  of  the  house  (which 
I  dislike  on  many  accounts)  to  strain  the  interpretation  of  it 
to  this  extravagance.  The  treaty-making  power  is  declared 
by  it  to  be  vested  exclusively  in  the  president  and  senate. 
Will  any  man  in  his  senses  affirm,  that  it  can  be  a  treaty 
before  it  has  any  binding  force  or  obligation?  If  it  has  no 
binding  force  upon  us,  it  has  none  upon  Great  Britain.  Let 
candour  answer,  is  Great  Britain  free  from  any  obligation 
to  deliver  the  posts  in  June,  and  are  we  willing  to  signify  to 
her,  that  we  think  so?  Is  it  with  that  nation  a  question  of 
mere  expediency  or  inexpediency  to  do  it;  and  that  too, 
even  after  we  have  done  all  that  depends  upon  us  to  give 
the  treaty  effect?  No  sober  man  believes  this.  No  one  who 
would  not  join  in  condemning  the  faithless  proceeding  of 
that  nation,  if  such  a  doctrine  should  be  avowed,  and  carri- 
ed into  practice:  and  why  complain,  if  Great  Britain  is  not 
bound?  There  can  be  no  breach  of  faith,  where  none  is 
plighted.  I  shall  be  told,  that  she  is  bound.  Surely  it  follows, 
that,  if  she  is  bound  to  performance,  our  nation  is  under  a 
similar  obligation:  if  both  parties  be  not  obliged,  neither 
is  obliged;  it  is  no  compact,  no  treaty.  This  is  a  dictate  of 
law  and  common  sense,  and  every  jury  in  the  country  has 
sanctioned  it  on  oath.  It  cannot  be  a  treaty  and  yet  no 
treaty,  a  bargain  and  yet  no  promise.  If  it  is  a  promise,  I 
am  not  to  read  a  lecture  to  show,  why  an  honest  man  will 
keep  his  promise. 


44  Mr.  Ames's  Speech  on 

The  reason  of  the  thing,  and  the  words  of  the  resolution 
of  the  house,  imply,  that  the  United  States  engage  their 
good  faith  in  a  treaty.  We  disclaim,  say  the  majority,  the 
treaty-making  power;  we  of  course  disclaim  (they  ought 
to  say)  every  doctrine,  that  would  put  a  negative  upon 
the  doings  of  that  power.  It  is  the  prerogative  of  folly 
alone  to  maintain  both  sides  of  the  proposition. 

Will  any  man  affirm,  the  American  nation  is  engaged 
by  good  faith  to  the  British  nation;  but  that  engagement 
is  nothing  to  this  house?  Such  a  man  is  not  to  be  reasoned 
with.  Such  a  doctrine  is  a  coat  of  mail,  that  would  turn 
the  edge  of  all  the  weapons  of  argument,  if  they  were 
sharper  than  a  sword.  Will  it  be  imagined  the  king  of 
Great  Britain  and  the  president  are  mutually  bound  by 
the  treaty;  but  the  two  nations  are  free? 

It  is  one  thing  for  this  house  to  stand  in  a  position,  that 
presents  an  opportunity  to  break  the  faith  of  America,  and 
another  to  establish  a  principle  that  will  justify  the  deed. 

We  feel  less  repugnance  to  believe,  that  any  other  body 
is  bound  by  obligation  than  our  own.  There  is  not  a  man 
here,  who  does  not  say  that  Great  Britain  is  bound  by 
treaty.  Bring  it  nearer  home.  Is  the  senate  bound?  Just 
as  much  as  the  house  and  no  more.  Suppose  the  senate, 
as  part  of  the  treaty  power,  by  ratifying  a  treaty  on  Mon- 
day, pledges  the  public  faith  to  do  a  certain  act.  Then,  in 
their  ordinary  capacity  as  a  branch  of  the  legislature,  the 
senate  is  called  upon  on  Tuesday  to  perform  that  act,  for 
example,  an  appropriation  of  money,  is  the  senate  (so 
lately  under  obligation)  now  free  to  agree  or  disagree  to 
the  act?  If  the  twenty  ratifying  senators  should  rise  up  and 
avow  this  principle,  saying,  we  struggle  for  liberty,  we 
will  not  be  cyphers,  mere  puppets,  and  give  their  votes 
accordingly,  would  not  shame  blister  their  tongues,  would 
not  infamy  tingle  in  their  ears,  would  not  their  country, 
which  they   had  insulted   and  dishonoured,    though    it 


the  British  Treaty.  .  45 

should  be  silent  and  forgiving,  be  a  revolutionary  tribu- 
nal, a  rack,  on  which  their  own  reflections  would  stretch 
them? 

This,  sir,  is  a  cause,  that  would  be  dishonoured  and 
betrayed,  if  I  contented  myself  with  appealing  only  to  the 
understanding.  It  is  too  cold,  and  its  processes  are  too 
slow  for  the  occasion.  I  desire  to  thank  God,  that,  since 
he  has  given  me  an  intellect  so  fallible,  he  has  impressed 
upon  me  an  instinct  that  is  sure.  On  a  question  of  shame 
and  honour,  reasoning  is  sometimes  useless,  and  worse. 
I  feel  the  decision  in  my  pulse:  if  it  throws  no  light  upon 
the  brain,  it  kindles  a  fire  at  the  heart. 

It  is  not  easy  to  deny,  it  is  impossible  to  doubt,  that  a 
treaty  imposes  an  obligation  on  the  American  nation.  It 
would  be  childish  to  consider  the  president  and  senate 
obliged,  and  the  nation  and  house  free.  What  is  the 
obligation?  perfect  or  imperfect?  If  perfect,  the  debate  is 
brought  to  a  conclusion.  If  imperfect,  how  large  a  part  of 
our  faith  is  pawned?  Is  half  our  honour  put  at  risk,  and  is 
that  half  too  cheap  to  be  redeemed?  How  long  has  this 
hair-splitting  subdivision  of  good  faith  been  discovered, 
and  why  has  it  escaped  the  researches  of  the  wrriters  on 
the  law  of  nations?  Shall  we  add  a  new  chapter  to  that 
law;  or  insert  this  doctrine  as  a  supplement  to.  or  more 
properly  a  repeal  of  the  ten  commandments? 

The  principles  and  the  example  of  the  British  parlia- 
ment have  been  alleged  to  coincide  with  the  doctrine  of 
those,  who  deny  the  obligation  of  the  treaty.  I  have  not 
had  the  health  to  make  very  laborious  researches  into  this 
subject;  I  will,  however,  sketch  my  view  of  it.  Several 
instances  have  been  noticed;  but  the  treaty  of  Utrecht  is 
the  only  one  that  seems  to  be  at  all  applicable.  It  has  been 
answered,  that  the  conduct  of  parliament  in  that  cele 
brated  example  affords  no  sanction  to  our  refusal  to  carrv 
the  treaty  into  effect.  The  obligation  of  the  treaty  oj 


46  Mr.  Ames's  Speech  on 

Utrecht  has  been  understood  to  depend  on  the  concur- 
rence of  parliament,  as  a  condition  of  its  becoming  of 
force.  If  that  opinion  should,  however,  appear  incorrect, 
still  the  precedent  proves,  not  that  the  treaty  of  Utrecht 
wanted  obligation,  but  that  parliament  disregarded  it:  a 
proof,  not  of  the  construction  of  the  treaty- making  power, 
but  of  the  violation  of  a  national  engagement.  Admitting 
still  further,  that  the  parliament  claimed  and  exercised  its 
power,  not  as  a  breach  of  faith,  but  as  a  matter  of  con- 
stitutional right,  I  reply  that  the  analogy  between  parlia- 
ment and  congress  totally  fails.  The  nature  of  the  British 
government  may  require  and  justify  a  course  of  proceed- 
ing in  respect  to  treaties,  that  is  unwarrantable  here. 

The  British  government  is  a  mixed  one.  The  king  at 
the  head  of  the  army,  of  the  hierarchy,  with  an  ample  civil 
list,  hereditary,  unresponsible,  and  possessing  the  prero- 
gative of  peace  and  war,  may  be  properly  observed  with 
some  jealousy,  in  respect  to  the  exercise  of  the  treaty- 
making  power.  It  seems,  and  perhaps  from  a  spirit  of 
caution  on  this  account,  to  be  their  doctrine,  that  treaties 
bind  the  nation,  but  are  not  to  be  regarded  by  the  courts 
of  law,  until  laws  have  been  passed  conformably  to  them. 
Our  constitution  has  expressly  regulated  the  matter  differ- 
ently. The  concurrence  of  parliament  is  necessary  to 
treaties  becoming  laws  in  England,  gentlemen  say;  and 
here  the  senate,  representing  the  states,  must  concur  in 
treaties.  The  constitution,  and  the  reason  of  the  case  make 
the  concurrence  of  the  senate  as  effectual  as  the  sanction 
of  parliament;  and  why  not?  The  senate  is  an  elective 
body,  and  the  approbation  of  a  majority  of  the  states  affords 
the  nation  as  ample  security  against  the  abuse  of  the 
treaty- making  power,  as  the  British  nation  can  enjoy  in 
the  control  of  parliament. 

Whatever  doubt  there  may  be  as  to  the  parliamentary 
doctrine  of  the  obligation  of  treaties  in  Great  Britain  (and 


the  British  Treaty.  47 

perhaps  there  is  some)  there  is  none  in  their  books,  or  their 
modern  practice.  Blackstone  represents  treaties  as  of  the 
highest  obligation,  when  ratified  by  the  king:  and  for  al- 
most a  century,  there  has  been  no  instance  of  opposition 
by  parliament  to  this  doctrine.  Their  treaties  have  been 
uniformly  carried  into  effect,  although  many  have  been 
ratified  of  a  nature  most  obnoxious  to  party,  and  have 
produced  a  louder  clamour  than  we  have  lately  witnessed. 
The  example  of  England,  therefore,  fairly  examined,  does 
not  warrant,  it  dissuades  us  from  a  negative  vote. 

Gentlemen  have  said,  with  spirit,  whatever  the  true 
doctrine  of  our  constitution  may  be,  Great  Britain  has  no 
right  to  complain  or  to  dictate  an  interpretation:  the  sense 
of  the  American  nation,  as  to  the  treaty  power,  is  to  be 
received  by  all  foreign  nations.  This  is  very  true  as  a 
maxim;  but  the  fact  is  against  those  who  vouch  it:  the 
sense  of  the  American  nation  is  not  as  the  vote  of  the 
house  has  declared  it.  Our  claim  to  some  agency  in 
giving  force  and  obligation  to  treaties,  is  beyond  all  kind 
of  controversy  novel.  The  sense  of  the  nation  is  proba- 
bly against  it:  the  sense  of  the  government  certainly  is. 
The  president  denies  it  on  constitutional  grounds,  and 
therefore  cannot  ever  accede  to  our  interpretation.  The 
senate  ratified  the  treat)-,  and  cannot  without  dishonour 
adopt  it,  as  I  have  attempted  to  show.  Where  then  do 
they  find  the  proof,  that  this  is  the  American  sense  of  the 
treaty- making  power,  which  is  to  silence  the  murmurs  of 
Great  Britain?  Is  it  because  a  majority  of  two  or  three,  or, 
at  the  most,  four  or  five  of  this  house  will  reject  the 
treaty?  Is  it  thus  the  sense  of  our  nation  is  to  be  recog- 
nized? Our  government  may  thus  be  stopped  in  its 
movements:  a  struggle  for  power  may  thus  commence, 
and  the  event  of  the  conflict  may  decide,  who  is  the  victor, 
and  the  quiet  possessor  of  the  treaty  power.  But,  at  pre- 
sent, it  is  beyond  all  credibility,  that  our  vote  by  a  bare 


48  Mr.  Ameses  Speech  on 

majority,  should  be  believed  to  do  any  thing  better  than 
to  embitter  our  divisions,  and  to  tear  up  the  settled 
foundations  of  our  departments. 

If  the  obligation  of  a  treaty  be  complete,  I  am  aware 
that  cases  sometimes  exist,  which  will  justify  a  nation  in 
refusing  a  compliance.  Are  our  liberties,  gentlemen  de- 
mand, to  be  bartered  away  by  a  treaty \  and  is  there  no 
remedy?  There  is.  Extremes  are  not  to  be  supposed;  but, 
when  they  happen,  they  make  the  law  for  themselves.  No 
such  extreme  can  be  pretended  in  this  instance;  and,  if  it 
existed,  the  authority  it  would  confer  to  throw  off  the 
obligation  would  rest  where  the  obligation  itself  resides, 
in  the  nation.  This  house  is  not  the  nation;  it  is  not  the 
whole  delegated  authority  of  the  nation.  Being  only  a 
part  of  that  authority,  its  right  to  act  for  the  whole  society 
obviously  depends  on  the  concurrence  of  the  other  two 
branches.  If  they  refuse  to  concur,  a  treaty  once  made 
remains  of  full  force,  although  a  breach  on  the  part  of  the 
foreign  nation  would  confer  upon  our  own  a  right  to  for- 
bear the  execution.  I  repeat  it,  even  in  that  case,  the  act 
of  this  house  cannot  be  admitted  as  the  act  of  the  nation; 
and  if  the  president  and  senate  should  not  concur,  the 
treaty  would  be  obligatory. 

I  put  a  case  that  will  not  fail  to  produce  conviction.  Our 
treaty  with  France  engages,  that  free  bottoms  shall  make 
free  goods;  and  how  has  it  been  kept?  As  such  engage- 
ments will  ever  be  in  time  of  war.  France  has  set  it  aside, 
and  pleads  imperious  necessity.  We  have  no  navy  to 
enforce  the  observance  of  such  articles,  and  paper  barriers 
are  weak  against  the  violence  of  those,  who  are  on  the 
scramble  for  enemy's  goods  on  the  high  seas.  The  breach 
of  any  article  of  the  treaty  by  one  nation  gives  an  un- 
doubted right  to  the  other  to  renounce  the  whole  treaty. 
But  has  one  branch  of  the  government  that  right,  or  must 
it  reside  with  the  whole  authority  of  the  nation?  What  it 


the  British  Treaty.  49 

the  senate  should  resolve,  that  the  French  treaty  is  broken, 
and  therefore  null  and  of  no  effect?  The  answer  is  obvious; 
you  would  deny  their  sole  authority.  That  branch  of  the 
legislature  has  equal  power,  in  this  regard,  with  the  house 
of  representatives:  one  branch  alone  cannot  express  the 
will  of  the  nation. 

A  right  to  annul  a  treaty,  because  a  foreign  nation  has 
broken  its  articles,  is  only  like  the  case  of  a  sufficient  cause 
to  repeal  a  law.  In  both  cases,  the  branches  of  our  govern- 
ment must  concur  in  the  orderly  way,  or  the  law  and  the 
treaty  will  remain. 

The  very  cases  supposed  by  my  adversaries  in  this 
argument,  conclude  against  themselves.  They  will  persist 
in  confounding  ideas,  that  should  be  kept  distinct;  they 
will  suppose,  that  the  house  of  representatives  has  no 
power  unless  it  has  all  power:  the  house  is  nothing,  if  it 
be  not  the  whole  government,  the  nation. 

On  every  hypothesis,  therefore,  the  conclusion  is  not 
to  be  resisted:  we  are  either  to  execute  this  treaty,  or 
break  our  faith. 

To  expatiate  on  the  value  of  public  faith  may  pass  with 
some  men  for  declamation:  to  such  men  I  have  nothing 
to  say.  To  others  I  will  urge,  can  any  circumstance  mark 
upon  a  people  more  turpitude  and  debasement?  Can  any 
thing  tend  more  to  make  men  think  themselves  mean,  or 
degrade  to  a  lower  point  their  estimation  of  virtue  and 
their  standard  of  action?  It  would  not  merely  demoralize 
mankind;  it  tends  to  break  all  the  ligaments  of  society,  to 
dissolve  that  mysterious  charm  which  attracts  individuals 
to  the  nation,  and  to  inspire  in  its  stead  a  repulsive  sense 
of  shame  and  disgust. 

What  is  patriotism?  Is  it  a  narrow  affection  for  the  spot 
where  a  man  was  born?  Are  the  very  clods  where  we  tread 
entitled  to  this  ardent  preference,  because  they  are  greener? 
No,  sir,  this  is  not  the  character  of  the  virtue,  and  it  soars 

Vol.  II.  G 


50  Mr.  Ames's  Speech  on 

higher  for  its  object.  It  is  an  extended  self-love,  mingling 
with  all  the  enjoyments  of  life,  and  twisting  itself  with  the 
minutest  filaments  of  the  heart.  It  is  thus  we  obey  the  laws 
6f  society,  because  they  are  the  laws  of  virtue.  In  their 
authority  we  see,  not  the  array  of  force  and  terror,  but 
the  venerable  image  of  our  country's  honour.  Every  good 
citizen  makes  that  honour  his  own,  and  cherishes  it  not 
only  as  precious,  but  as  sacred.  He  is  willing  to  risk  his 
life  in  its  defence;  and  is  conscious  that  he  gains  protec- 
tion, while  he  gives  it.  For  what  rights  of  a  citizen  will 
be  deemed  inviolable,  when  a  state  renounces  the  princi- 
ples that  constitute  their  security"?  Or,  if  his  life  should  not 
be  invaded,"  what  would  its  enjoyments  be  in  a  country 
odious  in  the  eyes  of  strangers,  and  dishonoured  in  his 
own?  Could  he  look  with  affection  and  veneration  to  such 
a  country  as  his  parent?  The  sense  of  having  one  would 
die  within  him;  he  would  blush  for  his  patriotism,  if  he 
retained  any,  and  justly,  for  it  would  be  a  vice:  he  would 
be  a  banished  man  in  his  native  land. 

I  see  no  exception  to  the  respect  that  is  paid  among 
nations  to  the  law  of  good  faith.  If  there  are  cases  in  this 
enlightened  period  when  it  is  violated,  there  are  none 
when  it  is  decried.  It  is  the  philosophy  of  politics,  the 
religion  of  governments.  It  is  observed  by  barbarians:  a 
whnT  of  tobacco  smoke,  or  a  string  of  beads,  gives  not 
merely  binding  force,  but  sanction  to  treaties.  Even  in 
Algiers,  a  truce  may  be  bought  for  money;  but,  when 
ratified,  even  Algiers  is  too  wise  or  too  just  to  disown  or 
annul  its  obligation.  Thus  we  see,  neither  the  ignorance 
of  savages,  nor  the  principles  of  an  association  for  piracy 
and  rapine,  permit  a  nation  to  despise  its  engagements. 
If,  sir,  there  could,  be  a  resurrection  from  the  foot  of  the 
gallows,  if  the  victims  of  justice  could  live  again,  collect 
together  and  form  a  society,  they  would,  however  loath, 
soon  find  themselves  obliged  to  make  justice,  that  justice 


the  British  Treaty,  51 

under  which  they  fell,  the  fundamental  law  of  their  state. 
They  would  perceive  it  was  their  interest  to  make  others 
respect,  and  they  would  therefore  soon  pay  some  respect 
themselves  to  the  obligations  of  good  faith. 

It  is  painful,  I  hope  it  is  superfluous,  to  make  even  the 
supposition,  that  America  should  furnish  the  occasion  of 
this  opprobrium.  No,  let  me  not  even  imagine,  that  a 
republican  government,  sprung,  as  our  own  is,  from  a 
people  enlightened  and  uncorrupted,  a  government  whose 
origin  is  right,  and  whose  daily  discipline  is  duty,  can, 
upon  solemn  debate,  make  its  option  to  be  faithless;  can 
dare  to  act  what  despots  dare  not  avow,  what  our  own 
example  evinces  the  states  of  Barbary  are  unsuspected  of. 
No,  let  me  rather  make  the  supposition,  that  Great  Britain 
refuses  to  execute  the  treaty,  after  we  have  done  every 
thing  to  carry  it  into  effect.  Is  there  any  language  of  re- 
proach pungent  enough  to  express  your  commentary  on 
the  fact?  What  would  you  say,  or,  rather,  what  would 
you  riot  say?  Would  you  not  tell  them,  wherever  an 
Englishman  might  travel,  shame  would  stick  to  him:  he 
would  disown  his  country.  You  would  exclaim,  England, 
proud  of  your  wealth,  and  arrogant  in  the  possession  of 
power,  blush  fcjr  these  distinctions,  which  become  the 
vehicles  of  your  dishonour.  Such  a  nation  might  truly  say 
to  corruption,  thou  art  my  father,  and  to  the  worm,  thou 
art  my  mother  and  my  sister.  We  should  say  of  such  a 
race  of  men,  their  name  is  a  heavier  burden  than  their  debt. 

I  can  scarcely  persuade  myself  to  believe,  that  the  con- 
sideration I  have  suggested,  requires  the  aid  of  any  aux- 
iliary; but,  unfortunately,  auxiliary  arguments  are  at  hand. 
Five  millions  of  dollars,  and  probably  more,  on  the  score 
of  spoliations  committed  on  our  commerce,  depend  upon 
the  treaty:  the  treaty  offers  the  only  prospect  of  indemnity. 
Such  redress  is  promised  as  the  merchants  place  some 
confidence  in.  Will  you  interpose  and  frustrate  that  hope, 


52  Mr.  Ames's  Speech  on 

leaving  to  many  families  nothing  but  beggary  and  despair? 
It  is  a  smooth  proceeding  to  take  a  vote  in  this  body:  it 
takes  less  than  half  an  hour  to  call  the  yeas  and  nays,  and 
reject  the  treaty.  But  what  is  the  effect  of  it?  What  but 
this:  the  very  men,  formerly  so  loud  for  redress,  such 
fierce  champions,  that  even  to  ask  for  justice  was  too  mean 
and  too  slow,  now  turn  their  capricious  fury  upon  the 
sufferers,  and  say,  by  their  vote,  to  them  and  their  fami- 
lies, no  longer  eat  bread:  petitioners  go  home  and  starve: 
we  cannot  satisfy  your  wrongs,  and  our  resentments. 

Will  you  pay  the  sufferers  out  of  the  treasury?  No.  The 
answer  was  given  two  years  ago,  and  appears  on  our  jour- 
nals. Will  you  give  them  letters  of  marque  and  reprisal,, 
to  pay  themselves  by  force?  No.  That  is  war.  Besides  it 
would  be  an  opportunity  for  those  who  have  already  lost 
much,  to  lose  more.  Will  you  go  to  war  to  avenge  their 
injury?  If  you  do,  the  war  will  leave  you  no  money  to 
indemnify  them.  If  it  should  be  unsuccessful,  you  will 
aggravate  existing  evils:  if  successful,  your  enemy  will 
have  no  treasure  left  to  give  your  merchants:  the  first 
losses  will  be  confounded  with  much  greater,  and  be  for- 
gotten. At  the  end  of  a  war  there  must  be  a  negotiation, 
which  is  the  very  point  we  have  already  gained:  and  why 
relinquish  it?  And  who  will  be  confident,  that  the  terms 
of  the  negotiation,  after  a  desolating  war,  would  be  more 
acceptable  to  another  house  of  representatives  than  the 
treaty  before  us?  Members  and  opinions  may  be  so 
changed,  that  the  treaty  would  then  be  rejected  for  being 
what  the  present  majority  say  it  should  be.  Whether  we 
shall  go  on  making  treaties  and  refusing  to  execute  them, 
I  know  not:  of  this  I  am  certain,  it  will  be  very  difficult 
to  exercise  the  treaty- making  power  on  the  new  principle, 
with  much  reputation  or  advantage  to  the  country. 

The  refusal  of  the  posts  (inevitable  if  we  reject  the 
treaty)  is  a  measure  too  decisive  in  its  nature  to  be  neutral 


the  British  Treaty.  53 

in  its  consequences.  From  great  causes  we  are  to  look 
for  great  effects.  A  plain  and  obvious  one  will  be,  the 
price  of  the  western  lands  will  fall:  settlers  will  not  choose 
to  fix  their  habitation  on  a  field  of  battle.  Those  who  talk 
so  much  of  the  interest  of  the  United  States  should  calcu- 
late, how  deeply  it  will  be  affected  by  rejecting  the  treaty; 
how  vast  a  tract  of  wild  land  will  almost  cease  to  be  pro- 
perty. This  loss,  let  it  be  observed,  will  fall  upon  a  fund 
expressly  devoted  to  sink  the  national  debt.  What  then 
are  we  called  upon  to  do?  However  the  form  of  the  vote 
and  the  protestations  of  many  may  disguise  the  proceed- 
ing, our  resolution  is  in  substance,  and  it  deserves  to  wear 
the  title  of  a  resolution,  to  prevent  the  sale  of  the  western 
lands  and  the  discharge  of  the  public  debt. 

Will  the  tendency  to  Indian  hostilities  be  contested  by 
any  one?  Experience  gives  the  answer.  The  frontiers 
were  scourged  with  war,  until  the  negotiation  with  Great 
Britain  was  far  advanced;  and  then  the  hostility  ceased. 
Perhaps  the  public  agents  of  both  nations  are  innocent  of 
fomenting  the  Indian  war,  and  perhaps  they  are  not.  We 
ought  not,  however,  to  expect  that  neighbouring  nations, 
highly  irritated  against  each  other,  will  neglect  the  friend- 
ship of  the  savages.  The  traders  will  gain  an  influence, 
and  will  abuse  it;  and  who  is  ignorant  that  their  passions 
are  easily  raised  and  hardly  restrained  from  violence? 
Their  situation  will  oblige  them  to  choose  between  this 
country  and  Great  Britain,  in  case  the  treaty  should  be 
rejected:  they  will  not  be  our  friends,  and  at  the  same 
time  the  friends  of  our  enemies. 

But  am  I  reduced  to  the  necessity  of  proving  this  point? 
Certainly  the  very  men  who  charged  the  Indian  war  on  the 
detention  of  the  posts,  will  call  for  no  other  proof  than  the 
recital  of  their  own  speeches.  It  is  remembered,  with  what 
emphasis,  with  what  acrimony,  they  expatiated  on  the 
burden  of  taxes,  and  the  drain  of  blood  and  treasure  into 


54  Mr.  Ames's  Speech  o?i 

the  western  country,  in  consequence  of  Britain's  holding" 
the  posts.  Until  the  posts  are  restored,  they  exclaimed, 
the  treasury  and  the  frontiers  must  bleed. 

If  any,  against  all  these  proofs,  should  maintain,  that 
the  peace  with  the  Indians  will  be  stable  without  the 
posts,  to  them  I  will  urge  another  reply.  From  arguments 
calculated  to  produce  conviction,  I  will  appeal  to  the 
hearts  of  those  who  hear  me,  and  ask  whether  it  is  not 
already  planted  there?  I  resort  especially  to  the  convic- 
tions of  the  western  gentlemen,  whether,  supposing  no 
posts  and  no  treaty,  the  settlers  will  remain  in  security? 
Can  they  take  it  upon  them  to  say,  that  an  Indian  peace, 
under  these  circumstances,  will  prove  firm?  No,  sir,  it 
will  not  be  peace,  but  a  sword;  it  will  be  no  better  than  a 
lure  to  draw  victims  within  the  reach  of  the  tomahawk. 

On  this  theme,  my  emotions  are  unutterable.  If  I  could 
find  words  for  them,  if  my  powers  bore  any  proportion  to 
my  zeal,  I  would  swell  my  voice  to  such  a  note  of  remon- 
strance, it  should  reach  every  log-house  beyond  the 
mountains.  I  would  say  to  the  inhabitants,  wake  from 
your  false  security:  your  cruel  dangers,  your  more  cruel 
apprehensions  are  soon  to  be  renewed:  the  wounds,  yet 
unhealed,  are  to  be  torn  open  again:  in  the  day  time,  your 
path  through  the  woods  will  be  ambushed;  the  darkness 
of  midnight  will  glitter  with  the  blaze  of  your  dwellings. 
You  are  a  father — the  blood  of  your  sons  shall  fatten 
your  corn  field:  you  are  a  mother — the  war-hoop  shall 
wake  the  sleep  of  the  cradle. 

On  this  subject  you  need  not  expect  any  deception  on 
your  feelings:  it  is  a  spectacle  of  horror,  which  cannot  be 
over  drawn.  If  you  have  nature  in  your  hearts,  they  will 
speak  a  language,  compared  with  which  all  I  have  said  or 
can  say  will  be  poor  and  frigid. 

Will  it  be  whispered,  that  the  treaty  has  made  me  a  new 
champion  for  the  protection  of  the  frontiers.  It  is  known, 


the  British  Treaty,  55 

that  my  voice  as  well  as  vote  have  been  uniformly  given 
in  conformity  with  the  ideas  I  have  expressed.  Protection 
is  the  right  of  the  frontiers;  it  is  our  duty  to  give  it. 

Who  will  accuse  me  of  wandering  out  of  the  subject? 
Who  will  say,  that  I  exaggerate  the  tendencies  of  our 
measures?  Will  any  one  answer  by  a  sneer,  that  all  this 
is  idle  preaching.  Will  any  one  deny,  that  we  are  bound, 
and  I  would  hope  to  good  purpose,  by  the  most  solemn 
sanctions  of  duty  for  the  vote  we  give?  Are  despots  alone 
to  be  reproached  for  unfeeling  indifference  to  the  tears 
and  blood  of  their  subjects?  Are  republicans  unresponsi- 
ble? Have  the  principles,  on  which  you  ground  the  re- 
proach upon  cabinets  and  kings,  no  practical  influence,  no 
binding  force?  Are  they  merely  themes  of  idle  declama- 
tion, introduced  to  decorate  the  morality  of  a  news-paper 
essay,  or  to  furnish  pretty  topics  of  harangue  from  the 
windows  of  that  state-house?  I  trust  it  is  neither  too  pre- 
sumptuous nor  too  late  to  ask:  Can  you  put  the  dearest 
interest  of  society  at  risk,  without  guilt,  and  without 
remorse? 

It  is  vain  to  offer  as  an  excuse,  that  public  men  are  not 
to  be  reproached  for  the  evils  that  may  happen  to  ensue 
from  their  measures.  This  is  Very  true,  where  they  are 
unforeseen  or  inevitable.  Those  I  have  depicted  are  not 
unforeseen:  they  are  so  far  from  inevitable,  we  are  going 
to  bring  them  into  being  by  our  vote:  we  choose  the 
consequences,  and  become  as  justly  answerable  for  them, 
as  for  the  measure  that  we  know  will  produce  them. 

By  rejecting  the  posts,  we  light  the  savage  fires,  we 
bind  the  victims.  This  day  we  undertake  to  render  account 
to  the  widows  and  orphans  whom  our  decision  will  make, 
to  the  wretches  that  will  be  roasted  at  the  stake,  to  our 
country,  and  I  do  not  deem  it  too  serious  to  say,  to  con- 
science and  to  God.  We  are  answerable;  and  if  duty  be 
any  thing  more  than  a  word  of  imposture,  if  conscience  be 


56  Mr.  Ames's  Speech  on 

not  a  bugbear,  we  are  preparing  to  make  ourselves  as 
wretehed  as  our  country. 

There  is  no  mistake  in  this  case,  there  can  be  none: 
experience  has  already  been  the  prophet  of  events,  and 
the  cries  of  our  future  victims  have  already  reached  us. 
The  western  inhabitants  are  not  a  silent  and  uncomplain- 
ing sacrifice.  The  voice  of  humanity  issues  from  the  shade 
of  the  wilderness:  it  exclaims,  that,  while  one  hand  is 
held  up  to  reject  this  treaty,  the  other  grasps  a  tomahawk. 
It  summons  our  imagination  to  the  scenes  that  will  open. 
It  is  no  great  effort  of  the  imagination  to  conceive  that 
events  so  near  are  already  begun.  I  can  fancy  that  I  listen 
to  the  yells  of  savage  vengeance  and  the  shrieks  of  torture: 
already  they  seem  to  sigh  in  the  western  wind;  already 
they  mingle  writh  every  echo  from  the  mountains. 

It  is  not  the  part  of  prudence  to  be  inattentive  to  the 
tendencies  of  measures:  where  there  is  any  ground  to  fear 
that  these  will  be  pernicious,  wisdom  and  duty  forbid  that 
we  should  under-rate  them.  If  we  reject  the  treaty,  will 
our  peace  be  as  safe  as  if  we  execute  it  with  good  faith? 
I  do  honour  to  the  intrepid  spirits  of  those  who  say  it 
will.  It  was  formerly  understood  to  constitute  the  excel- 
lence of  a  man's  faith,  to  believe  without  evidence  and 
against  it. 

But,  as  opinions  on  this  article  are  changed,  and  we  are 
called  to  act  for  our  country,  it  becomes  us  to  explore  the 
dangers  that  will  attend  its  peace,  and  avoid  them  if  we 
can.  Few  of  us  here,  and  fewer  here  in  proportion  of  our 
constituents,  will  doubt,  that,  by  rejecting,  all  those  dan- 
gers will  be  aggravated. 

The  idea  of  war  is  treated  as  a  bugbear.  This  levity  is 
at  least  unseasonable,  and  most  of  all  unbecoming  some 
who  resort  to  it.  Who  has  forgotten  the  philippics  of 
1794?  The  cry  then  was,  reparation;  no  envoy;  no  treaty; 
no  tedious  delays.  Now  it  seems  the  passion  subsides,  or 


the  British  Treaty,  57 

at  least  the  hurry  to  satisfy  it.  Great  Britain,  say  they, 
will  not  wage  war  upon  us. 

In  1794,  it  was  urged  by  those  who  now  say,  no  war, 
that,  if  we  built  frigates,  or  resisted  the  piracies  of  Algiers, 
we  could  not  expect  peace.  Now  they  give  excellent  com- 
fort truly.  Great  Britain  has  seized  our  vessels  and  car- 
goes to  the  amount  of  millions;  she  holds  the  posts;  she 
interrupts  our  trade,  say  they,  as  a  neutral  nation;  and 
these  gentlemen,  formerly  so  fierce  for  redress,  assure  us, 
in  terms  of  the  sweetest  consolation,  Great  Britain  will 
bear  all  this  patiently.  But  let  me  ask  the  late  champions 
of  our  rights,  will  our  nation  bear  it?  Let  others  exult 
because  the  aggressor  will  let  our  wrongs  sleep  for  ever. 
Will  it  add,  it  is  my  duty  to  ask,  to  the  patience  and  quiet 
of  our  citizens  to  see  their  rights  abandoned?  Will  not 
the  disappointment  of  their  hopes,  so  long  patronised  by 
the  government,  now  in  the  crisis  of  their  being  realized, 
convert  all  their  passions  into  fury  and  despair? 

Are  the  posts  to  remain  for  ever  in  the  possession  of 
Great  Britain?  Let  those  who  reject  them,  when  the  treaty 
offers  them  to  our  hands,  say,  if  they  choose,  they  are  of 
no  importance.  If  they  are,  will  they  take  them  by  force? 
The  argument  I  am  urging  would  then  come  to  a  point. 
To  use  force  is  war;  to  talk  of  treaty  again  is  too  absurd: 
the  posts  and  redress  must  come  from  voluntary  good 
will,  treaty,  or  war.  The  conclusion  is  plain:  if  the  state 
of  peace  shall  continue,  so  will  the  British  possession  of 
the  posts. 

Look  again  at  this  state  of  things:  on  the  sea  coast,  vast 
losses  uncompensated;  on  the  frontier,  Indian  war,  and 
actual  encroachment  on  our  territory;  every  where  dis- 
content; resentments  tenfold  more  fierce  because  they 
will  be  impotent  and  humbled;  national  discord  and 
abasement.  The  disputes  of  the  old  treaty  of  1783,  being 
left  to  rankle,  will  revive  the  almost  extinguished  ani- 

Vol.  II.  H 


58  Mr.  Ames's  Speech  on 

mosities  of  that  period.  Wars  in  all  countries,  and  most 
of  all  in  such  as  are  free,  arise  from  the  impetuosity  of  the 
public  feelings.  The  despotism  of  Turkey  is  often  obliged 
by  clamour  to  unsheath  the  sword.  War  might  perhaps 
be  delayed,  but  could  not  be  prevented:  the  causes  of  it 
would  remain,  would  be  aggravated,  would  be  multiplied, 
and  soon  become  intolerable.  More  captures,  more  im- 
pressments would  swell  the  list  of  our  wrongs,  and  the 
current  of  our  rage.  I  make  no  calculation  of  the  arts  of 
those  whose  employment  it  has  been,  on  former  occasions, 
to  fan  the  fire;  I  say  nothing  of  the  foreign  money  and 
emissaries  that  might  foment  the  spirit  of  hostility,  be- 
cause the  state  of  things  will  naturally  run  to  violence: 
with  less  than  their  former  exertion,  they  would  be  suc- 
cessful. 

Will  our  government  be  able  to  temper  and  restrain 
the  turbulence  of  such  a  crisis?  The  government,  alas! 
will  be  in  no  capacity  to  govern.  A  divided  people,  and 
divided  counsels!  Shall  we  cherish  the  spirit  of  peace,  or 
show  the  energies  of  war?  Shall  we  make  our  adversary 
afraid  of  our  strength,  or  dispose  him,  by  the  measures  of 
resentment  and  broken  faith,  to  respect  our  rights?  Do 
gentlemen  rely  on  the  state  of  peace,  because  both  nations 
will  be  worse  disposed  to  keep  it?  because  injuries,  and 
insults  still  harder  to  endure,  will  be  mutually  offered. 

Such  a  state  of  things  will  exist,  if  we  should  long  avoid 
war,  as  will  be  worse  than  war:  peace  without  security, 
accumulation  of  injury  without  redress,  or  the  hope  of  it, 
resentment  against  the  aggressor,  contempt  for  ourselves, 
intestine  discord,  and  anarchy.  Worse  than  this  need  not 
be  apprehended,  for  if  worse  could  happen,  anarchy  would 
bring  it.  Is  this  the  peace  gentlemen  undertake,  with 
such  fearless  confidence,  to  maintain?  Is  this  the  station 
of  American  dignity,  which  the  high-spirited  champions 
of  our  national  independence  and  honour  could  endure: 


the  British  Treaty.  59 

nay,  which  they  are  anxious  and  almost  violent  to  seize 
for  the  country?  What  is  there  in  the  treaty  that  could 
humble  us  so  low"?  Are  they  the  men  to  swallow  their 
resentments,  who  so  lately  were  choking  with  them?  If 
in  the  case  contemplated  by  them,  it  should  be  peace,  I 
do  not  hesitate  to  declare,  it  ought  not  to  be  peace. 

Is  there  any  thing  in  the  prospect  of  the  interior  state 
of  the  country,  to  encourage  us  to  aggravate  the  dangers 
of  a  war?  Would  not  the  shock  of  that  evil  produce 
another,  and  shake  down  the  feeble  and  then  unbraced 
structure  of  our  government?  Is  this  a  chimera?  Is  it 
going  off  the  ground  of  matter  of  fact  to  say,  the  rejection 
of  the  appropriation  proceeds  upon  the  doctrine  of  a  civil 
war  of  the  departments.  Two  branches  have  ratified  a 
treaty;  and  we  are  going  to  set  it  aside.  How  is  this  dis- 
order in  the  machine  to  be  rectified?  While  it  exists,  its 
movements  must  stop;  and  when  we  talk  of  a  remedy,  is 
that  any  other  than  the  formidable  one  of  a  revolutionary 
interposition  of  the  people?  And  is  this,  in  the  judgment 
even  of  my  opposers,  to  execute,  to  preserve  the  constitu- 
tion, and  the  public  order?  Is  this  the  state  of  hazard,  if 
not  of  convulsion,  which  they  can  have  the  courage  to 
contemplate  and  to  brave;  or  beyond  which  their  penetra- 
tion can  reach  and  see  the  issue?  They  seem  to  believe, 
and  they  act  as  if  they  believed,  that  our  union,  our  peace, 
our  liberty,  are  invulnerable  and  immortal;  as  if  our  happy 
state  was  not  to  be  disturbed  by  our  dissentions,  and  that 
we  are  not  capable  of  falling  from  it  by  our  unworthiness. 
Some  of  them  have  no  doubt  better  nerves  and  better 
discernment  than  mine.  They  can  see  the  bright  aspects 
and  happy  consequences  of  all  this  array  of  horrors.  They 
can  see  intestine  discords,  our  government  disorganized. 
our  wrongs  aggravated,  multiplied  and  unredressed,  peace 
with  dishonour,  or  war  without  justice,  union,  or  resour- 
ces, in  "  the  calm  lights  of  mild  philosophy." 


60  Mr.  Ames's  Speech  on 

But  whatever  they  may  anticipate  as  the  next  measure 
of  prudence  and  safety,  they  have  explained  nothing  to  the 
house.  After  rejecting  the  treaty,  what  is  to  be  the  next 
step?  They  must  have  foreseen  what  ought  to  be  done; 
they  have  doubtless  resolved  what  to  propose.  Why  then 
are  they  silent?  Dare  they  not  now  avow  their  plan  of 
conduct,  or  do  they  wait  until  our  progress  towards  con- 
fusion shall  guide  them  in  forming  it? 

Let  me  cheer  the  mind,  weary  no  doubt  and  ready  to 
despond  on  this  prospect,  by  presenting  another  which  it 
is  yet  in  our  power  to  realize.  Is  it  possible  for  a  real 
American  to  look  at  the  prosperity  of  this  country,  with- 
out some  desire  for  its  continuance,  without  some  respect 
for  the  measures  which,  many  will  say,  produced,  and  all 
will  confess  have  preserved  it?  Will  he  not  feel  some 
dread,  that  a  change  of  system  will  reverse  the  scene? 
The  well  grounded  fears  of  our  citizens,  in  1794,  were 
removed  by  the  treaty,  but  are  not  forgotten.  Then  they 
deemed  war  nearly  inevitable,  and  would  not  this  adjust- 
ment have  been  considered  at  that  day  as  a  happy  escape 
from  the  calamity?  The  great  interest  and  the  general 
desire  of  our  people  was  to  enjoy  the  advantages  of  neu- 
trality. This  instrument,  however  misrepresented,  affords 
America  that  inestimable  security.  The  causes  of  our 
disputes  are  either  cut  up  by  the  roots,  or  referred  to  a 
new  negotiation,  after  the  end  of  the  European  war.  This 
was  gaining  every  thing,  because  it  confirmed  our  neu- 
trality, by  which  our  citizens  are  gaining  every  thing. 
This  alone  would  justify  the  engagements  of  the  govern- 
ment. For,  when  the  fiery  vapours  of  the  war  lowered  in 
the  skirts  of  our  horizon,  all  our  wishes  were  concentred 
in  this  one,  that  we  might  escape  the  desolation  of  the 
storm.  This  treaty,  like  a  rainbow  on  the  edge  of  the 
cloud,  marked  to  our  eyes  the  space  where  it  was  raging, 
and  afforded  at  the  same  time  the  sure  prognostic  of  fair 


the  British  Treaty.  61 

weather.  If  we  reject  it,  the  vivid  colours  will  grow  pale, 
it  will  be  a  baleful  meteor  portending  tempest  and  war. 

Let  us  not  hesitate  then  to  agree  to  the  appropriation  to 
carry  it  into  faithful  execution.  Thus  we  shall  save  the 
faith  of  our  nation,  secure  its  peace,  and  diffuse  the  spirit 
of  confidence  and  enterprise  that  will  augment  its  pros- 
perity. The  progress  of  wealth  and  improvement  is  won- 
derful, and  some  will  think,  too  rapid.  The  field  for  exer- 
tion is  fruitful  and  vast,  and  if  peace  and  good  govern- 
ment should  be  preserved,  the  acquisitions  of  our  citizens 
are  not  so  pleasing  as  the  proofs  of  their  industry,  as  the 
instruments  of  their  future  success.  The  rewards  of  exer- 
tion go  to  augment  its  power.  Profit  is  every  hour  becom- 
ing capital.  The  vast  crop  of  our  neutrality  is  all  seed 
wheat,  and  is  sown  again,  to  swell,  almost  beyond  cal- 
culation, the  future  harvest  of  prosperity.  In  this  pro- 
gress what  seems  to  be  fiction  is  found  to  fall  short  of 
experience. 

I  rose  to  speak  under  impressions  that  I  would  have 
resisted  if  I  could.  Those  who  see  me  will  believe,  that 
the  reduced  state  of  my  health  has  unfitted  me,  almost 
equally,  for  much  exertion  of  body  or  mind.  Unprepared 
for  debate  by  careful  reflection  in  my  retirement,  or  by 
long  attention  here,  I  thought  the  resolution  I  had  taken, 
to  sit  silent,  was  imposed  by  necessity,  and  would  cost  mc 
no  effort  to  maintain.  With  a  mind  thus  vacant  of  ideas, 
and  sinking,  as  I  really  am,  under  a  sense  of  weakness,  I. 
imagined  the  very  desire  of  speaking  was  extinguished  by 
the  persuasion  that  I  had  nothing  to  say.  Yet  when  I 
come  to  the  moment  of  deciding  the  vote,  I  start  back 
with  dread  from  the  edge  of  the  pit  into  which  we  are 
plunging.  In  my  view,  even  the  minutes  I  have  spent  in 
expostulation  have  their  value,  because  they  protract  the 
crisis,  and  the  short  period  in  which  alone  we  may  resolve 
to  escape  it. 


62  Mr.  Morris's  Speech  on 

I  have  thus  been  led  by  my  feelings  to  speak  more  at 
length  than  I  had  intended.  Yet  I  have  perhaps  as  little 
personal  interest  in  the  event  as  any  one  here.  There  is,  I 
believe,  no  member,  who  will  not  think  his  chance  to  be 
a  witness  of  the  consequences  greater  than  mine.  If,  how- 
ever, the  vote  should  pass  to  reject,  and  a  spirit  should 
rise,  as  it  will,  with  the  public  disorders  to  make  "  con- 
fusion worse  confounded,"  even  I,  slender  and  almost 
broken  as  my  hold  upon  life  is,  may  outlive  the  govern- 
ment and  constitution  of  my  country. 


SPEECH  OF  MR.  MORRIS, 

OX  THE  JUDICIARY  ESTABLISHMENT. 

DURING  the  presidency  of  Mr.  Adams,  several  tribu- 
nals of  the  United  States  were  established,  under  the 
denomination  of  Circuit  Courts.  The  succeeding  adminis- 
tration, deeming  these  courts  unnecessary,  proposed  to 
suppress  them,  and  a  bill  was  accordingly  brought  in  for 
that  purpose.  The  federalists  in  general  considered  the 
measure  dangerous  and  unconstitutional.  Their  opinion 
was  strenuously  contested.  Interesting  debates  ensued; 
and  the  following  speeches  may  afford  a  favorable  speci- 
men of  the  eloquence  of  both  parties  on  this  important 
occasion. 

Mr.  President, 

I  had  fostered  the  hope  that  some  gentleman  who 
thinks  with  me,  would  have  taken  upon  himself  the  task 
of  replying  to  the  observations  made  yesterday  and  this 
morning  in  favour  of  the  motion  on  your  table.  But  since 
no  gentleman  has  gone  so  fully  into  the  subject  as  it 
seems  to  require,  I  am  compelled  to  request  your  attention. 


the  Judiciary  Establishment.  63 

We  were  told  yesterday,  by  the  honourable  member 
from  Virginia,  that  our  objections  were  calculated  for  the 
bye  standers,  and  made  with  a  view  to  produce  an  effect 
upon  the  people  at  large.  I  know  not  for  whom  this 
charge  is  intended.  I  certainly  recollect  no  such  observa- 
tions. As  I  was  personally  charged  with  making  a  play 
upon  words,  it  may  have  been  intended  for  me.  But 
surely,  sir,  it  will  be  recollected  that  I  declined  that  paltry 
game,  and  declared  that  I  considered  the  verbal  criticism 
which  had  been  relied  on,  as  irrelevant.  If  I  can  recollect 
what  I  said,  from  recollecting  well  what  I  thought,  and 
meant  to  say,  sure  I  am,  that  I  uttered  nothing  in  the  style 
of  an  appeal  to  the  people.  I  hope  no  member  of  this 
house  has  so  poor  a  sense  of  its  dignity  as  to  make  such 
an  appeal.  As  to  myself,  it  is  now  thirty  years  since  I  was 
called  into  public  office.  During  that  period  I  have  fre- 
quently been  the  servant  of  the  people,  always  their  friend; 
but  at  no  moment  of  my  life  their  flatterer,  and  God  for- 
bid that  I  ever  should  be.  When  the  honourable  gentle- 
man considers  the  course  we  have  taken,  he  must  see  that: 
the  observations  he  has  thus  pointed  can  light  on  no  ob- 
ject. I  trust  that  it  did  not  flow  from  a  consciousness  of 
his  own  intentions.  He,  I  hope,  had  no  view  of  this  sort. 
If  he  had,  he  was  much,  very  much,  mistaken.  Had  he 
looked  round  upon  those  who  honour  us  with  their  atten- 
dance, he  would  have  seen  that  the  splendid  flashes  of  his 
wit  excited  no  approbatory  smile.  The  countenances  of 
those  by  whom  we  were  surrounded  presented  a  different 
spectacle.  They  were  impressed  with  the  dignity  of  this 
house;  they  perceived  in  it  the  dignity  of  the  American 
people,  and  felt  with  high  and  manly  sentiment  their  own 
participation. 

We  have  been  told,  sir,  by  the  honourable  gentleman 
from  Virginia,  that  there  is  no  independent  part  of  this 
government.  That  in  popular  governments  the  form  of 


64  Mr.  Morris's  Speech  on 

every  department,  as  well  as  the  government  itself,  must 
depend  upon  popular  opinion.  And  the  honourable  mem- 
ber from  North  Carolina  has  informed  us  that  there  is  no 
check  for  the  overbearing  powers  of  the  legislature  but 
the  public  opinion;  and  he  has  been  pleased  to  notice  a 
sentiment  I  had  uttered; — a  sentiment  which  not  only 
fell  from  my  lips,  but -which  flowed  from  my  heart.  It  has, 
however,  been  misunderstood  and  misapplied.  After  re- 
minding the  house  of  the  dangers  to  which  popular 
governments  are  exposed  from  the  influence  of  designing 
demagogues  upon  popular  passion,  I  took  the  liberty  to 
say,  that  we,  we  the  senate  of  the  United  States,  are  as- 
sembled here  to  save  the  people  from  their  most  dangerous 
enemy,  to  save  them  from  themselves;  to  guard  them 
against  the  baneful  effects  of  their  own  precipitation,  their 
passion,  their  misguided  zeal.  'Tis  but  for  these  purposes 
that  all  our  constitutional  checks  are  devised.  If  this  be 
not  the  language  of  the  constitution,  the  constitution  is 
all  nonsense.  For  why  are  the  senators  chosen  by  com- 
munities, and  the  representatives  directly  by  the  people? 
Why  are  the  one  chosen  for  a  longer  term  than  the  other? 
Why  give  one  branch  of  the  legislature  a  negative  upon 
the  acts  of  the  other?  Why  give  the  president  a  right  to 
arrest  the  proceedings  of  both  till  two-thirds  of  each 
should  concur?  Why  all  these  multiplied  precautions, 
unless  to  check  and  control  that  iniquitous  spirit,  that 
headlong  torrent  of  opinion,  which  has  swept  away  every 
popular  government  that  ever  existed? 

With  most  respectful  attention  I  heard  the  declaration 
of  the  gentleman  from  Virginia,  of  his  own  sentiment: 
"  Whatever,"  said  he,  "  may  be  my  opinion  of  the  con- 
stitution, I  hold  myself  bound  to  respect  it."  He  dis- 
dained, sir,  to  profess  an  affection  he  did  not  feel,  and  I 
accept  his  candour  as  a  pledge  for  the  performance  of  his 
duty.  But  he  will  admit  this  necessary  inference  from  that 


the  Judiciary  Establishment.  65 

frank  confession,  that  although  he  will  struggle  (against 
his  inclination)  to  support  the  constitution,  even  to  the 
last  moment,  yet  when  in  spite  of  all  his  efforts  it  shall 
fall,  he  will  rejoice  in  its  destruction.  Far  different  are  my 
feelings.  It  is  impossible  that  we  are  both  prejudiced,  and 
that  in  taking  the  ground  on  which  we  respectively  stand, 
our  judgments  are  influenced  by  the  sentiments  which 
glow  in  our  hearts.  I,  sir,  wish  to  support  the  constitu- 
tion because  I  love  it.  And  I  love  it  because  I  consider 
it  as  the  bond  of  our  union;  because  in  my  soul  I  believe 
that  on  it  depends  our  harmony  and  our  peace;  and  with- 
out it  we  should  soon  be  involved  in  civil  war;  that  this 
country  would  be  deluged  with  the  blood  of  its  inhabi- 
tants; and  a  brother's  hand  be  raised  against  a  brother. 

After  these  preliminary  remarks,  I  hope  I  shall  be 
indulged,  while  I  consider  the  subject  in  reference  to  the 
two  points  which  have  been  taken,  the  expediency  and 
constitutionality  of  the  repeal. 

In  considering  the  expediency  I  hope  I  shall  be  par- 
doned for  asking  your  attention  to  some  parts  of  the  con- 
stitution, which  have  not  yet  been  dwelt  upon,  and  which 
tend  to  elucidate  this  part  of  our  enquiry.  I  agree  fully 
with  the  gentleman,  that  every  section,  every  sentence, 
and  every  word  of  the  constitution  ought  to  be  deliber- 
ately weighed  and  examined;  nay,  I  am  content  to  go 
along  with  him,  and  give  its  due  value  and  importance 
to  every  stop  -and  comma.  In  the  beginning  we  find  a 
declaration  of  the  motives  which  induced  the  American 
people  to  bind  themselves  by  this  compact.  And  in  the 
foreground  of  that  declaration  we  find  these  objects  speci- 
fied; to  form  a  more  perfect  union,  to  establish  justice,  and 
insure  domestic  tranquillity.  But  how  are  these  objects 
effected?  The  people  intended  to  establish  justice.  What 
provision  have  they  made  to  fulfil  that  intention?  After 
pointing  out  the  courts  which  should  be  established,  the 

Vol.  II.  I 


66  Mr.  Morris's  Speech  on 

second  section  of  the  third  article  informs  us,  "The 
judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  constitution,  the  laws  of  the  United 
States,  and  the  treaties  made,  or  which  shall  be  made, 
under  their  authority;  to  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls; -to  all  cases  of  admi- 
ralty and  maritime  jurisdiction;  to  controversies  to  which 
the  United  States  shall  be  a  party;  to  controversies  be- 
tween two  or  more  states,  between  a  state  and  citizens  of 
another  state,  between  citizens  of  different  states,  between 
citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states,  and  between  a  state  and  the  citizens  there- 
of, and  foreign  states,  citizens,  or  subjects. 

"  In  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  state  shall  be 
a  party,  the  supreme  court  shall  have  original  jurisdiction. 
In  all  the  other  cases  beforementioned,  the  supreme  court 
shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions,  and  under  such  regulations  as  the 
congress  shall  make." 

Thus  then  we  find  that  the  judicial  power  shall  extend 
to  a  great  variety  of  cases,  but  that  the  supreme  court  shall 
have  only  appellate  jurisdiction  in  all  admiralty  and  mari- 
time causes,  in  all  controversies  between  the  United  States 
and  private  citizens,  between  citizens  and  different  states, 
between  citizens  of, the  same  state  claiming  lands  under 
different  states,  and  between  a  citizen  of  the*  United  States 
and  foreign  states,  citizens  or  subjects.  The  honourable 
gentfeman  from  Kentucky,  who  made  the  motion  on  your 
table,  has  told  us  that  the  constitution  in  its  judiciary  pro- 
visions contemplated  only  those  cases  which  could  not  be 
tried  in  the  state  courts.  But  he  will,  I  hope,  pardon  me 
when  I  contend  that  the  constitution  did  not  merely  con- 
template, but  did  by  express  words  reserve  to  the  national 
tribunals  a  right  to  decide,  and  did  secure  to  the  citizens 


the  Judiciary  Establishment.  67 

of  America  a  right  to  demand  their  decision  in  many  cases 
evidently  cognizable  in  the  state  courts.  And  what  are 
these  cases?  They  are  those  in  respect  to  which  it  is  by 
the  constitution  presumed  that  the  state  courts  should  not 
always  make  a  cool  and  calm  investigation,  a  fair  and  just 
decision.  To  form,  therefore,  a  more  perfect  union,  and 
to  insure  domestic  tranquillity,  the  constitution  has  also 
said  there  shall  likewise  be  courts  of  the  union  to  try 
causes,  by  the  wrongful  decision  of  which  the  union 
might  be  endangered  or  domestic  tranquillity  be  disturbed. 
And  what  courts?  Look  again  at  the  cases  designated. 
The  supreme  court  has  no  original  jurisdiction.  The 
constitution  "has  said  that  the  judicial  powers  shall  be 
vested  in  the  supreme  and  inferior  courts.  It  has  declared 
that  the  judicial  power  so  vested  shall  extend  to  the  cases 
mentioned,  and  that  the  supreme  court  shall  not  have 
original  j urisdiction  in  those  cases.  Evidently,  therefore, 
it  has  declared  that  they  shall  (in  the  first  instance)  be 
tried  by  inferior  courts,  with  appeal  to  the  supreme  court. 
This,  therefore,  amounts  to  a  declaration  that  the  inferior 
courts  shall  exist;  since  without  them  the  citizen  is 
deprived  of  those  rights  for  which  he  stipulated,  or  rather 
those  rights  verbally  granted  would  be  actually  withheld; 
and  that  great  security  of  our  union,  that  necessary  guard 
of  our  tranquillity,  be  completely  paralized,  if  not  destroy- 
ed. In  declaring  then  that  these  tribunals  shall  exist,  it 
equally  declares,  that  the  congress  shall  ordain  and  esta- 
blish them.  I  say  they  shall;  this  is  the  evident  intention, 
if  not  the  express  words,  of  the  constitution.  The  conven- 
tion in  framing,  the  American  people  in  adopting^  that 
compact,  did  not,  could  not  presume,  that  the  congress 
would  omit  to  do,  what  they  were  thus  bound  to  do.  They 
could  not  presume,  that  the  legislature  would  hesitate  one 
moment,  in  establishing  the  organs  necessary  to  carry 
into  effect  those  wholesome,  those  important  provisions. 


68  Mr.  Morris's  Speech  on 

The  honourable  member  from  Virginia  has  given  us  a 
history  of  the  judicial  system,  and  in  the  course  of  it  has 
told  us,  that  the  judges  of  the  supreme  court  knew,  when 
they  accepted  their  offices,  the  duties  they  were  to  perform 
and  the  salaries  hey  were  to  receive.  He  thence  infers, 
that  if  again  called  on  to  do  the  same  duties,  they  have  no 
right  to  complain.  Agreed.  But  that  is  not  the  question 
between  us.  Admitting  that  they  have  made  a  hard  bar- 
gain, and  that  we  may  hold  them  to  a  strict  performance, 
is  it  wise  to  exact  their  compliance  to  the  injury  of  our 
constituents?  We  are  urged  to  go  back  to  the  old  system; 
but  let  us  first  examine  the  effects  of  that  system.  The 
judges  of  the  supreme  court  rode  the  circuits,  and  two  of 
them  with  the  assistance  of  a  district  judge  held  circuit 
courts  and  tried  causes.  As  a  supreme  court  they  have  in 
most  cases  only  an  appellate  jurisdiction.  In  the  first 
instance,  therefore,  they  tried  a  cause  sitting  as  an  inferior 
courts  and  then  on  appeal  tried  it  over  again  as  a  supreme 
court.  Thus  then  the  appeal  was  from  the  sentence  of  the 
judges  to  the  judges  themselves.  But  say,  that  to  avoid 
this  incoherency,  you  will  incapacitate  the  two  judges 
who  sat  on  the  circuit  from  sitting  in  the  supreme  court 
to  receive  their  own  decrees.  Strike  them  off:  and  suppose, 
either*  the  same  or  a  contrary  decision  to  have  been  made 
on  another  circuit  by  two  of  their  brethren  in  a  similar 
ca'se.  For  the  same  reason  you  strike  them  off,  and  then 
you  have  no  court  left.  Is  this  wise?  Is  it  safe?  You  place 
yourselves  in  a  situation  where  your  citizens  must  be 
deprived  of  a  court  of  appeals,  or  else  run  the  greatest 
risk  that  the  decision  of  the  first  court  will  carry  with  it 
that  of  the  other. 

The  same  honourable  member  has  given  us  a  history 
of  a  law  passed  the  last  session,  which  he  wishes  now  to 
repeal.  That  history  is  accurate  at  least  in  one  important 
part  of  it.  I  believe  that  all  amendments  w-ere  rejected, 


the  Judiciary  Establishment.  69 

pertinaciously  rejected:  and  I  acknowledge  that  I  joined 
heartily  in  that  rejection.  It  was  for  the  clearest  reason  on 
earth.  We  all  perfectly  understood,  that  to  amend  the  bill 
was  to  destroy  it.  That  if  ever  it  got  back  to  the  other 
house,  it  would  perish. 

Those,  therefore,  who  approved  of  the  general  provi- 
sions of  that  bill,  were  determined  to  adopt  it.  We  sought 
the  practicable  good,  and  would  not  in  pursuit  of  unat- 
tainable perfection,  sacrifice  that  good  to  the  pride  of 
opinion.  We  took  the  bill,  therefore,  with  its  imperfec- 
tions, convinced  that  when  it  was  once  passed  into  a  law, 
it  might  be  easily  amended. 

WTe  are  now  told  that  this  procedure  was  improper: 
nay,  that  it  was  indecent.  That  public  opinion  had  declared 
itself  against  us.  That  a  majority  (holding  different  opi- 
nions) was  already  clwsen  to  the  other  house;  and  that  a 
similar  majority  was  expected  for  that  in  which  we  sit. 
Mr.  President,  are  we  then  to  understand,  that  opposition 
to  the  majority  in  the  two  houses  of  congress  is  improper , 
is  indecent?  If  so,  what  are  wre  to  think  of  those  gentle- 
men, who  not  only  with  proper  and  decent,  but  with 
laudable  motives  (for  such  is  their  claim)  so  long,  so  per- 
severingly,  so  pertinaciously,  opposed  that  voice  of  the 
people,  which  had  so  repeatedly,  and  for  so  many  years, 
declared  itself  against  them,  through  the  organ  of  their 
representatives?  Was  this  indecent  in  them?  If  not,  how- 
could  it  be  improper  for  us  to  seize  the  only  moment 
which  was  left  for  the  then  majority  to  do  what  they 
deemed  a  necessary  act?  Let  me  again  refer  to  these  im- 
perious demands  of  the  constitution,  which  called  us  to 
establish  inferior  courts.  Let  me  remind  gentlemen  of 
their  assertion  on  this  floor,  that  centuries  might  elapse 
before  any  judicial  system  could  be  established  with 
general  consent.  And  then,  let  me  ask,  being  thus  im- 
pressed with  a  sense  of  the  duty  and  of  the  difficulty  of 


70  Mr.  Morris's  Speech  on 

performing  that  arduous  task,  was  knot  wise  to  seize  the 
auspicious  moment? 

Among  the  many  stigmas  affixed  to  this  law,  we  have 
been  told  that  the  president,  in  selecting  men  to  fill  the 
offices  which  it  created,  made  vacancies  and  filled  them 
from  the  floor  of  this  house.  And  that  but  for  the  influence 
of  this  circumstance,  a  majority  in  favour  of  it  could  not 
have  been  found.  Let  us  examine  this  suggestion.  It  is 
grounded  on  the  supposition  of  corrupt  influence  derived 
from  a  hope,  founded  on  two  remote  and  successive  con- 
tingencies. First,  the  vacancy  might  or  might  not  exist; 
for  it  depended  as  well  on  the  acceptance  of  another  as  on 
the  president's  grant;  and  secondly,  the  president  might  or 
might  not  fill  it  with  a  member  of  this  house.  Yet  on  this 
vague  conjecture,  it  is  asserted,  that  men  in  high  confidence 
violated  their  duty.  It  is  hard  to  determine  the  influence 
of  self-interest  on  the  heart  of  man.  I  shall  not,  therefore 
make  the  attempt.  In  the  present  case  it  is  possible,  that 
the  imputation  may  be  just,  but  I  hope  not,  I  believe  not. 
At  any  rate  gentlemen  will  agree  with  me,  that  the  calcu- 
lation is  uncertain  and  the  conjecture  vague. 

But  let  it  now,  for  an  argument  sake,  be  admitted; 
saving  always  the  reputation  of  honourable  men  who  are 
not  here  to  defend  themselves.  Let  it,  I  say,  for  argument 
sake  be  admitted,  that  the  gentlemen  alluded  to  acted 
under  the  influence  of  improper  motives.  What  then?  Is 
a  law,  that  has  received  the  varied  assent  required  by  the 
constitution,  and  is  clothed  with  all  the  needful  formali- 
ties, thereby  invalidated?  Can  you  impair  its  force  by 
impeaching  the  motives  of  any  member  who  voted  for  it? 
Does  it  follow,  that  a  law  is  bad  because  all  those  who 
concurred  in  it  cannot  give  good  reasons  for  their  votes? 
Must  we  not  judge  of  it  by  its  intrinsic  merit.  Is  it  a  fair 
argument  addressed  to  our  understanding,  to  say  we  must 
repeal  a  law,  even  a  good  one,  if  the  enacting  of  it  may 


the  Judiciary  Establishment.  71 

have  been  effected  in  any  degree  by  improper  motives? 
Or  is  the  judgment  of  this  house  so  feeble,  that  it  may 
not  be  trusted. 

Gentlemen  tell  us,  however,  that  the  law  is  materially 
defective,  nay,  that  it  is  unconstitutional.  What  follows? 
Gentlemen  bid  us  repeal  it.  But  is  this  just  reasoning?  If 
the  law  be  only  defective,  why  not  amend?  And  if  uncon- 
stitutional why  repeal?  In  this  case  no  repeal  can  be  neces- 
sary; the  law  is  in  itself  void;  it  is  a  mere  dead  letter. 

To  show  that  it  is  unconstitutional  a  particular  clause 
is  pointed  out,  and  an  inference  is  made,  as  in  the  case  of 
goods,  where  because  there  is  one  contraband  article  on 
board,  the  whole  cargo  is  forfeited.  Admit  for  a  moment, 
that  the  part  alluded  to  was  unconstitutional,  this  would 
in  no  wise  affect  the  remainder.  That  part  would  be  void, 
or  if  you  think  proper,  you  can  repeal  that  part. 

Let  us,  however,  examine  the  clause  objected  to  on  the 
ground  of  the  constitution.  It  is  said  that  by  this  law  the 
district  judges  in  Tennessee  and  Kentucky  are  removed 
from  office  by  making  them  circuit  judges.  And  again, 
that  you  have  by  law  appointed  two  new  offices,  those  of 
circuit  judges,  and  filled  them  by  law,  instead  of  pursuing 
the  modes  of  appointment  prescribed  by  the  constitution. 
To  prove  all  this,  the  gentleman  from  Virginia  did  us  the 
favour  to  read  those  parts  of  the  law  which  he  condemns, 
and  if  I  can  trust  my  memory,  it  is  clear  from  what  he 
read,  that  the  law  does  not  remove  these  district  judges, 
neither  does  it  appoint  them  to  the  office  of  circuit  judges. 
It  does,  indeed,  put  down  the  district  court,  but  is  so  far 
from  destroying  the  offices  of  district  judges,  that  it  de- 
clares the  persons  filling  those  offices  shall  perform  the 
duty  of  holding  the  circuit  courts.  And  so  far  is  it  from 
appointing  circuit  judges,  that  it  declares  the  circuit  courts 
shall  be  held  by  the  district  judges.  But  gentlemen  con- 
tend, that  to  discontinue  the  district  courts  was  in  effect  to 


72  Mr.  Morrisl&  Speech  on 

remove  the  district  judges.  This,  sir,  is  so  far  from  being 
a  just  inference  from  the  law,  that  the  direct  contrary- 
follows  as  a  necessary  result:  for  it  is  on  the  principle  that 
these  judges  continue  in  office  after  their  courts  are  dis- 
continued, that  the  new  duty  of  holding  other  courts  is 
assigned  to  them.  But  gentlemen  say,  this  doctrine  mili- 
tates with  the  principles  we  contend  for.  Surely  not.  It 
must  be  recollected,  sir,  that  we  have  repeatedly  admitted 
the  right  of  the  legislature,  to  change,  alter,  modify,  and 
amend  the  judiciary  system,  so  as  best  to  promote  the 
interest  of  the  people.  We  only  contend,  that  you  should 
not  exceed  or  contravene  the  authority  by  which  you  act. 
3ut,  say  gentlemen,  you  forced  this  new  office  on  the  dis- 
trict judges,  and  this  is  in  effect  a  new  appointment.  I 
answer  that  the  question  can  only  arise  on  the  refusal  of 
those  judges  to  act.  Bait  is  it  unconstitutional  to  assign 
new  duties  to  offices  already  existing?  I  fear  that  if  this 
construction  be  adopted,  our  labours  will  speedily  end;  for 
we  shall  be  so  shackled  that  we  cannot  move.  What  is  the 
practice?  Do  we  not  every  day  call  upon  particular  officers 
to  perform  duties  not  previously  assigned  to,  or  required 
of  them?  And  must  the  executive  in  every  such  case 
make  a  new  appointment? 

But  as  a  further  reason  to  restore,  by  repealing  this  law, 
the  old  system,  an  honourable  member  from  North  Caro- 
lina has  told  us,  the  judges  of  the  supreme  court  should 
attend  in  the  states  to  acquire  a  competent  knowledge  of 
local  institutions,  and  for  this  purpose  should  continue  to 
ride  the  circuits.  I  believe  there  is  great  use  in  sending 
young  men  to  travel;  it  tends  to  enlarge  their  views,  and 
give  them  more  liberal  ideas  than  they  might  otherwise 
possess.  Nay,  if  they  reside  long  enough  in  foreign  coun- 
tries, they  may  become  acquainted  with  the  manners  of 
the  people,  and  acquire  some  knowledge  of  their  civil 
institutions.  But  I  am  not  quite  convinced  that  riding 


the  Judiciary  Establishment.  73 

rapidly  from  one  end  of  this  country  to  the  other  is  the 
best  way  to  study  law.  I  am  inclined  to  believe  that  know- 
ledge may  be  more  conveniently  acquired  in  the  closet 
than  upon  the  high  road.  It  is,  moreover,  to  be  presumed 
that  the  first  magistrate  would,  in  selecting  persons  to  fill 
these  offices,  take  the  best  characters  from  the  different 
parts  of  the  country,  who  already  possess  the  needful 
acquirements.  But  admitting  that  the  president  should 
not  duly  exercise  in  this  respect  his  discretionary  powers, 
and  admitting  that  the  ideas  of  the  gentleman  are  correct, 
how  wretched  must  be  our  condition!  These,  our  judges, 
when  called  on  to  exercise  their  functions,  would  but 
begin  to  learn  their  trade,  and  that  too  at  a  period  of  life 
when  the  intellectual  powers,  with  no  great  facility,  can 
acquire  new  ideas.  We  must,  therefore,  have  a  double  set 
of  judges.  One  set  of  apprentice  judges,  to  ride  circuits 
and  learn;  the  other  set,  of  master  judges,  to  hold  courts 
and  decide  controversies. 

We  are  told,  sir,  that  the  repeal  asked  for  is  important, 
in  that  it  may  establish  a  precedent;  for  that  it  is  not  mere- 
ly a  question  on  the  propriety  of  disbanding  a  corps  of 
sixteen  rank  and  file;  but  that  provision  may  hereafter  be 
made,  not  for  sixteen,  but  for  sixteen  hundred  or  sixteen 
thousand  judges,  and  that  it  may  become  necessary  to 
turn  them  to  the  right  about.  Mr.  President,  I  will  not,  I 
cannot  presume,  that  any  such  provision  will  ever  be 
made,  and  therefore  I  cannot  conceive  any  such  necessity; 
I  will  not  suppose,  for  I  cannot  suppose,  that  any  party  ol- 
faction will  ever  do  any  thing  so  wild,  so  extravagant. 
But,  I  will  ask,  how  does  this  strange  supposition  consist 
with  the  doctrine  of  gentlemen,  that  public  opinion  is  a 
sufficient  check  on  the  legislature,  and  a  sufficient  safe- 
guard to  the  people.  Put  the  case  to  its  consequences, 
and  what  becomes  of  the  check?  Will  gentlemen  say  it  is 
to  be  found  in  the  force  of  this  precedent?  Is  this  to  con- 

Vol.  II.  K 


74  Mr.  Morris's  Speech  on 

trol  succeeding  rulers  in  their  wild,  their  mad  career?  But 
how?  Is  the  creation  of  judicial  officers  the  only  thing 
committed  to  their  discretion?  Have  they  not,  according 
to  the  doctrine  contended  for,  our  all,  at  their  disposition, 
with  no  other  check  than  public  opinion,  which,  accord- 
ing to  the  supposition,  will  not  prevent  them  from  com- 
mitting the  greatest  follies  and  absurdities?  Take  then  all 
the  gentleman's  ideas  and  compare  them  together,  it  will 
result  that  there  is  an  inestimable  treasure  put  into  the 
hands  of  drunkards,  madmen,  and  fools. 

But  away  with  all  these  derogatory  suppositions.  The 
legislature  may  be  trusted.  Our  government  is  a  system 
of  salutary  checks.  One  legislative  branch  is  a  check  on 
the  other.  And  should  the  violence  of  party  spirit  bear 
both  of  them  away,  the  president,  an  officer  high  in  honour, 
high  in  the  public  confidence,  charged  with  weighty  con- 
cerns, responsible  to  his  own  regulation,  and  to  the  world, 
stands  ready  to  arrest  their  too  impetuous  course.  This  is 
our  system.  It  makes  no  mad  appeal  to  every  mob  in  the 
country.  It  appeals  to  the  sober  sense  of  men  selected 
from  their  fellow  citizens  for  their  talents,  for  their  virtue; 
of  men  in  advanced  life,  and  of  matured  judgment.  It 
appeals  to  their  understanding,  to  their  integrity,  to  their 
honour,  to  their  love  of  fame,  to  their  sense  of  shame.  If 
all  these  checks  should  prove  insufficient,  and,  alas!  such 
is  the  condition  of  human  nature,  that  I  fear  they  will  not 
always  be  sufficient,  the  constitution  has  given  us  one 
more.  It  has  given  us  an  independent  judiciary.  We  have 
been  told  that  the  executive  authority  carries  your  laws 
into  execution.  But  let  us  not  be  the  dupes  of  sound. 
The  executive  magistrate  commands,  indeed,  your  fleets 
and  armies;  and  duties,  imposts,  excises,  and  all  other 
taxes,  are  collected,  and  all  expenditures  are  made  by 
officers  whom  he  has  appointed.  So  far  he  executes 
^*our  laws.   But  these  his  acts  do  not  often  apply  to  in- 


the  Judiciary  Establishment.  IS 

dividual  concerns.  In  those  cases  so  important  to  the 
peace  and  happiness  of  society,  the  execution  of  your 
laws  is  confided  to  your  judges.  And  therefore  are  they 
rendered  independent.  Before,  then,  that  you  violate  that 
independence,  pause;  there  are  state  sovereignties,  as  well 
as  the  sovereignty  of  the  general  government.  There  are 
cases,  too  many  cases,  in  which  the  interest  of  one  is  not 
considered  as  the  interest  of  the  other.  Should  these  con- 
flict— if  the  judiciary  be  gone,  the  question  is  no  longer 
of  law  but  of  force.  This  is  a  state  of  things  which  no 
honest  and  wise  man  can  view  without  horror. 

Suppose,  in  the  omnipotence  of  your  legislative  autho- 
rity, you  trench  upon  the  rights  of  your  fellow  citizens, 
by  passing  an  unconstitutional  law:  if  the  judiciary  depart- 
ment preserve  its  vigour,  it  will  stop  you  short.  Instead 
of  a  resort  to  arms,  there  will  be  a  happier  appeal  to  argu- 
ment. Suppose  a  case  still  more  impressive.  The  presi- 
dent is  at  the  head  of  your  armies.  Let  one  of  his  generals, 
flushed  with  victory,  and  proud  in  command,  presume  to 
trample  on  the  rights  of  your  most  insignificant  citizen. 
Indignant  of  the  wrong,  he  will  demand  the  protection  of 
your  tribunals,  and  safe  in  the  shadow  of  their  wings,  will 
laugh  his  oppressor  to  scorn. 

Having  now,  1  believe,  examined  all  the  arguments  ad- 
duced to  show  the  expediency  of  the  motion,  and  which 
fairly  sifted,  reduce  themselves  at  last  to  these  two  things: 
Restore  the  ancient  system,  and  save  the  additional  ex- 
pense. Before  I  close  what  I  have  to  say  on  this  ground, 
I  hope  I  shall  be  pardoned  for  saying  one  or  two  words 
about  the  expense.  I  hope,  also,  that  notwithstanding  the 
epithets  which  may  be  applied  to  my  arithmetic,  I  shall 
be  pardoned  for  using  that  which  I  learnt  at  school.  It 
may  have  deceived  me  when  it  taught  me  that  two  and 
two  make  four.  But  though  it  should  now  be  branded 
with  opprobrious  terms,  I  must  still  believe  that  two  and 


76  Mr.  Morris's  Speech  on 

two  do  still  make  four.  Gentlemen  of  newer  theories  and 
of  higher  attainments,  while  they  smile  at  my  inferiority, 
must  bear  with  my  infirmities,  and  take  me  as  I  am. 

In  all  this  great  system  of  saving;  in  all  this  ostentatious 
economy,  this  rage  of  reform,  how  happens  it  that  the 
eagle  eye  has  not  yet  been  turned  to  the  mint?  That  no 
one  piercing  glance  has  been  able  to  behold  the  expen- 
ditures of  that  department?  I  am  far  from  wishing  to  over- 
turn it.  Though  it  be  not  of  great  necessity,  nor  even  of 
substantial  importance,  though  it  be  but  a  splendid  trap- 
ping of  your  government;  yet,  as  it  may,  by  impressing 
on  your  current  coin  the  emblems  cf  your  sovereignty, 
have  some  tendency  to  encourage  a  national  spirit  and  to 
foster  the  national  pride,  I  am  willing  to  contribute  my 
share  to  its  support.  Yes,  sir,  I  would  foster  the  national 
pride;  I  cannot,  indeed,  approve  of  national  vanity,  nor 
feed  it  with  vile  adulation.  But  I  would  gladly  cherish 
the  lofty  sentiment  of  national  pride.  I  wish  my  country 
to  feel  like  Romans,  to  be  as  proud  as  Englishmen,  and 
going  still  further,  I  would  wish  them  to  veil  their  pride 
in  the  well  bred  modesty  of  French  politeness.  But  can 
this  establishment,  the  mere  decorum  of  your  political 
edifice,  can  it  be  compared  with  the  massy  columns  on 
which  rest  your  peace  and  safety?  Shall  the  striking  of  a 
few  half-pence  be  put  into  a  parallel  with  the  distribution 
of  justice?  I  find,  sir,  from  the  estimate  on  your  table, 
that  the  salaries  of  the  officers  of  your  mint  amount  to 
S  10,600,  and  that  the  expenses  are  estimated  at  10,900; 
making  821,500. 

I  find  that  the  actual  expenditure  of  the  last  year, 

exclusive  of  salaries,  amounted  to  $25,154  44 

Add  the  salaries,  ...  10,600 


We  have  a  total  of,  -  -         35,654  44 

A  sum  which  exceeds  the  salary  of  the  sixteen  judges. 


the  Judiciary  Establishment.  77 

I  find  further,  that  during  the  last  year  they  have  coined 
cents  and  half  cents  to  the  amount  of  10,173  dollars  and 
29  cents.  Thus  their  copper  coinage  falls  a  little  short  of 
what  it  costs  us  for  their  salaries.  We  have,  however, 
from  this  establishment  about  a  million  cents,  one  to  each 
family  in  America.  A  little  emblematic  medal  to  be  hung 
over  their  chimney  pieces;  and  this  is  all  their  compensa- 
tion for  all  that  expense.  Yet  not  a  word  has  been  said 
about  the  mint,  while  the  judges,  whose  services  are 
much  greater,  and  of  so  much  importance  to  the  com- 
munity, are  to  be  struck  off  at  a  blow,  in  order  to  save  an 
expense  which,  compared  with  the  object,  is  pitiful. 
What  conclusion  then  are  we  to  draw  from  this  predi- 
lection. 

I  will  not  pretend  to  assign  to  gentlemen,  the  motives 
by  which  they  may  be  influenced;  but  if  I  should  permit 
myself  to  make  the  enquiry,  the  style  of  so  many  obser- 
vations, and  more  especially  the  manner,  the  warmth, 
the  irritability,  which  has  been  exhibited  on  this  oc- 
casion, would  lead  to  a  solution  of  the  problem.  I  had 
the  honour,  sir,  when  I  addressed  you  the  other  day,  to 
observe,  that  I  believed  the  universe  could  not  afford  a 
spectacle  more  sublime  than  the  view  of  a  powerful  state 
kneeling  at  the  altar  of  justice,  and  sacrificing  there  her 
passion  and  her  pride.  That  I  once  suffered  the  hope  of 
beholding  that  spectacle  of  magnanimity  in  America. 
And  now  what  a. world  of  figures,  has  the  gentleman  from 
Virginia  formed  on  his  apprehensions  of  that  remark.  I 
never  expressed  any  thing  like  exultation  at  the  idea  of 
a  state  ignominiously  dragged  in  triumph  at  the  heels  of 
your  judges.  But  permit  me  to  say,  the  gentleman's  ex- 
quisite sensibility  on  that  subject,  his  alarm  and  appre- 
hension, all  show  his  strong  attachment  to  state  authority. 
Far  be  it  from  me,  however,  to  charge  the  gentleman 
with  improper  motives.   I  know  that  his  emotions  arise 


78  Mr.  Morris's  Speech  on 

from  one  of  those  imperfections  in  our  nature,  which  we 
cannot  remedy.  They  are  excited  by  causes  which  have 
naturally  made  him  hostile  to  this  constitution,  though 
his  duty  compels  him  reluctantly  to  support  it.  I  hope, 
however,  that  those  gentlemen,  who  entertain  different 
sentiments,  and  who  are  less  irritable  on  the  score  of 
state  dignity,  will  think  it  essential  to  preserve  a  consti- 
tution, without  which  the  independent  existence  of  the 
states  themselves  will  be  but  of  short  duration. 

This,  sir,  leads  me  to  the  second  object  I  had  pro- 
posed. I  shall  therefore  pray  your  indulgence,  while  I 
consider  how  far  this  measure  is  constitutional.  I  have 
not  been  able  to  discover  the  expediency,  but. will  now 
for  argument  sake  admit  it;  and  here  I  certainly  cannot 
but  express  my  deep  regret  for  the  situation  of  an  ho- 
nourable member  from  North  Carolina.  Bound  as  he  is, 
by  his  instructions,  arguments,  however  forcible,  can 
never  be  effectual.  1  ought  therefore,  to  wish  for  his  sake, 
that  his  mind  may  not  be  convinced  by  any  thing  I  shall 
say;  for  hard  indeed  would  be  his  condition,  to  be  bound 
by  the  contrarient  obligations  of  an  order  and  an  oath. 

I  cannot  however  but  express  my  profound  respect  for 
the  talents  of  those  who  gave  him  his  instructions,  and 
who  sitting  at  a  distance,  without  hearing  the  arguments, 
could  better  understand  the  subject  than  the  senator  on 
this  floor  after  full  discussion. 

The  honourable  member  from  Virginia  has  repeated 
the  distinction  before  taken  between  the  supreme  and 
the  inferior  tribunals;  he  has  insisted  on  the  distinction 
between  the  words  shall  and  may;  has  inferred  from  that 
distinction,  that  the  judges  of  the  inferior  courts  are  sub- 
jects of  the  legislative  discretion,  and  has  contended  that 
the  word  may  includes  all  power  respecting  the  subject 
to  which  it  is  applied,  consequently  to  raise  up  and  to 
put  down,  to  create  and  to  destroy.  I  must  entreat  your 


the  Judiciary  Establishment.  79 

patience,  sir,  while  I  go  more  into  this  subject  than  I 
ever  supposed  would  be  necessary.  By  the  article,  so 
often  quoted,  it  is  declared  "  that  the  judicial  power  of 
the  United  States,  shall  be  vested  in  one  supreme  court 
and  in  such  inferior  courts,  as  the  Congress  may  from 
time  to  time  establish."  I  beg  leave  to  recal  your  atten- 
tion to  what  I  have  already  said  of  these  inferior  courts — 
That  the  original  jurisdiction  of  various  subjects  being 
given  exclusively  to  them,  it  became  the  bounden  duty  of 
congress  to  establish  such  courts.  1  will  not  repeat  the  ar- 
gument already  used  on  that  subject.  But  I  will  ask  those 
who  urge  the  distinction  between  the  supreme  court  and 
the  inferior  tribunals,  whether  a  law  was  not  previously 
necessary,  before  the  supreme  court  be  organized.  They 
reply  that  the  constitution  says,  there  shall  be  a  supreme 
court,  and  therefore  the  congress  are  commanded  to  or- 
ganize it,  while  the  rest  is  left  to  their  discretion.  This, 
sir,  is  not  the  fact.  The  constitution  says  the  judicial 
power  shall  be  vested  in  one  supreme  court,  and  in  infe- 
rior courts.  The  legislature  can  therefore  only  organize 
one  supreme  court,  but  they  may  establish  as  many  in- 
ferior courts  as  they  shall  think  proper.  The  designation 
made  of  them  by  the  constitution  is,  such  inferior  courts 
as  congress  may  from  time  to  time  ordain  and  establish, 
But  why,  say  gentlemen,  fix  precisely  one  supreme  court, 
and  leave  the  rest  to  legislative  discretion?  The  answer  is 
simple.  It  results  from  the  nature  of  things,  from  the  exist- 
ence and  probable  state  of  our  country.  There  was  no  dif- 
ficulty in  deciding,  that  one  and  only  one  supreme  court 
should  be  proper  or  necessary,  to  which  should  lie  appeals 
from  inferior  tribunals.  Not  so  as  to  these.  The  United 
States  were  advancing  in  rapid  progression — their  popu 
lation  of  three  millions  was  soon  to  become  five,  then  ten. 
afterwards  twenty  millions.  This  was  well  known  as  far 
as  the  future  can  become  an  object  of  human  comprehen 


80  Mr.  Morris's  Speech  on 

sion.  In  this  increase  of  numbers,  with  a  stili  greater  in- 
crease of  wealth,  with  the  extension  of  our  commerce 
and  the  progress  of  the  arts,  it  was  evident  that  although 
a  great  many  tribunals  would  become  necessary,  it  was 
impossible  to  determine  either  on  the  precise  number  or 
the  most  convenient  form.  The  convention  did  not  pre- 
tend to  this  prescience;  but,  had  they  possessed  it,  would 
it  have  been  proper  to  have  established  then  all  the  tri- 
bunals necessary  for  all  future  times?  Would  it  have 
been  wise  to  have  planted  courts  among  the  Chickasaws, 
the  Chocktaws,  the  Cherokees,  the  Tuscaroras,  and  God 
knows  how  many  more,  because  at  some  future  day  the 
regions  over  which  they  roam  might  be  cultivated  by 
polished  men? — Was  it  not  proper,  wise,  necessary,  to 
leave  in  the  discretion  of  congress,  the  number  and  the 
kind  of  courts  which  they  might  find  it  proper  to  estab- 
lish for  the  purpose  designated  by  the  constitution. — 
This  simple  statement  of  facts,  facts  of  public  notoriety, 
is  alone  a  sufficient  comment  on,  and  explication  of  the 
words  on  which  gentlemen  have  so  much  relied.  The 
convention  in  framing,  the  people  in  adopting  this  com- 
pact, say  the  judicial  power  shall  extend  to  many  cases, 
the  original  cognizance  whereof  shall  be  by  the  inferior 
courts;  but  it  is  neither  necessary,  nor  even  possible, 
now,  to  determine  their  number  or  their  form:  tliat  essen- 
tial power  therefore,  shall  vest  in  such  inferior  courts  as 
the  congress  may  from  time  to  time,  in  the  progression 
of  time,  and  according  to  the  indication  of  circumstances, 
establish.  Not  provide,  ordain,  or  determine,  but  establish. 
Not  a  mere  temporary  provision,  but  an  establishment.  If 
after  this  it  had  said  in  general  terms,  that  judges  should 
hold  their  offices  during  good  behaviour,  could  a  doubt 
have  existed  on  the  interpretation  of  this  act,  under  all 
its  attending  circumstances,  that  the  judges  of  the  in- 
ferior courts  were  intended,  as  well  as  those' of  the  su- 


the  Judiciary  Establishment,  81 

preme  court?  But  did  the  framers  of  the  constitution  stop 
there?  Is  there  then  nothing  more?  Did  they  risk  on 
these  grammatical  niceties  the  fate  of  America?  Did  they 
rest  here  the  most  important  branch  of  our  government? 
Little  important  indeed,  as  to  foreign  danger;  but  infi- 
nitely valuable  to  our  domestic  peace  and  to  personal 
protection  against  the  oppression  of  our  rulers.  No.  Lest 
a  doubt  should  be  raised,  they  have  carefully  connected 
the  judges  of  both  courts  in  the  same  sentence;  they  have 
said  "the  judges  both  of  the  supreme  and  inferior  courts  " 
thus  coupling  them  inseparably  together.  You  may  cut 
the  bands  but  you  can  never  untie  them.  With  salutary 
caution  they  devised  this  clause,  to  arrest  the  overbearing 
temper  which  they  knew  belonged  to  legislative  bodies. 
They  do  not  say  the  judges  simply,  but  the  judges  of  the 
supreme  and  inferior  courts  shall  hold  their  offices  during 
good  behaviour.  They  say  therefore  to  the  legislature, 
you  may  judge  of  the  propriety,  the  utility,  the  necessity 
of  organizing  these  courts;  but  when  established  you  have 
done  your  duty.  Anticipating  the  course  of  passion  in 
future  times  they  say  to  the  legislature,  you  shall  not  dis- 
grace yourselves  by  exhibiting  the  indecent  spectacle  of 
judges  established  by  one  legislature  removed  by  another. 
We  will  save  you  also  from  yourselves.  We  say  these 
judges  shall  hold  their  offices:  and  surely,  sir,  to  pretend 
that  they  can  hold  their  office  after  the  office  is  destroyed, 
is  contemptible. 

The  framers  of  this  constitution  had  seen  much,  read 
much,  and  deeply  reflected.  They  knew  by  experience 
the  violence  of  popular  bodies;  and  let  it  be  remembered 
that  since  that  day  many  of  the  states,  taught  by  expe- 
rience, have  found  it  necessary  to  change  their  forms  of 
government,  to  avoid  the  effects  of  that  violence.  The 
convention  contemplated  the  very  act  you  now  attempt 
They  knew  also  the  jealousy  and  the  power  of  the  states; 

Vol.  II.  L 


82  Mr.  Morris's  Speech  on 

and  they  established  for  your  and  for  their  protection, 
this  most  important  department.  I  beg  gentlemen  to  hear 
and  to  remember  what  I  say.  It  is  this  department  alone, 
and  it  is  the  independence  alone  of  this  department,  which 
can  save  you  from  civil  war.  Yes,  sir,  adopt  the  language 
of  gentlemen,  say  with  them,  by  the  act  to  which  you  are 
urged,  "  if  we  cannot  remove  the  judges  we  can  destroy 
them."  Establish  thus  the  dependence  of  the  judiciary 
department.  Who  will  resort  to  them  for  protection 
against  you?  Who  will  confide  in,  who  will  be  bound  by 
their  decrees?  Are  we  then  to  resort  to  the  ultimate  rea- 
son of  kings?  Are  our  arguments  to  fly  from  the  mouths 
of  our  cannon? 

We  are  told  that  we  may  violate  our  constitution,  be- 
cause similar  constitutions  have  been  violated  elsewhere. 
Two  states  have  been  cited  to  that  effect,  Maryland  and 
Virginia.  The  honourable  gentleman  from  Virginia  tells 
us  that  when  this  happened  in  the  state  he  belongs  to,  no 
complaint  was  made  by  the  judges.  I  will  not  enquire 
what  constitutions  have  been  violated.  I  will  not  ask 
either  when  or  where  this  dangerous  practice  began,  or 
has  been  followed.  I  will  admit  the  fact.  What  does  it 
prove?  Does  it  prove  that  because  they  have  violated,  we 
also  may  violate?  Does  it  not  prove  directly  the  contrary? 
Is  it  not  the  strongest  reason  on  earth  for  preserving  the 
independence  of  our  tribunals?  If  it  be  true  that  they  have 
with  strong  hand  seized  their  courts,  and  bent  them  to 
their  will,  ought  we  not  to  give  suitors  a  fair  chance  for 
justice  in  our  courts,  or  must  the  suffering  citizen  be 
deprived  of  all  protection? 

The  gentleman  from  Virginia  has  called  our  attention 
to  certain  cases  which  he  considers  as  forming  necessary 
exceptions  to  the  principles  for  which  we  contend.  Per- 
mit iv.n  to  say  that  necessity  is  a  bud  law,  and  frequently 


the  Judiciary  Establishment.  83 

proves  too  much;  and  let  the  gentleman  recollect  that  ar- 
guments which  prove  too  much  prove  nothing. 

He  has  instanced  a  case  where  it  may  be  proper  to  ap- 
point commissioners  for  a  limited  time  to  settle  some 
particular  description  of  controversies.  Undoubtedly  it  is 
always  in  the  power  of  congress  to  form  a  board  of  com- 
missioners for  particular  purposes.  He  asks,  are  these 
inferior  courts,  and  must  they  also  exist  forever?  I  answer 
that  the  nature  of  their  offices  must  depend  on  the  law  by 
which  they  are  created;  if  called  to  exercise  the  judicial 
functions  designated  by  the  constitution,  they  must  have 
existence  conformable  to  its  injunctions. 

Again,  he  has  instanced-  the  Mississippi  territory, 
claimed  by,  and  which  may  be  surrendered  to  the  state 
of  Georgia,  and  a  part  of  the  union  which  may  be  con- 
quered by  a  foreign  enemy.  And  he  asks  triumphantly, 
are  our  inferior  courts  to  remain  after  our  jurisdiction  is 
gone?  This  case  rests  upon  a  principle  so  simple,  that  I 
am  surprised  the  honourable  member  did  not  perceive  the 
answer  in  the  very  moment  when  he  made  the  objection. 
Is  it  by  our  act  that  a  country  is  taken  from  us  by  a  foreign 
enemy?  Is  it  by  our  consent  that  our  jurisdiction  is  lost? 
I  had  the  honour,  in  speaking  the  other  clay,  expressly 
and  for  the  most  obvious  reasons,  to  except  the  case  of 
conquest.  As  well  might  we  contend  for  the  government 
of  a  town  swallowed  up  by  an  earthquake. 

General  Mason  exclaimed — He  had  supposed  the  case 
of  territory  conquered  and  afterwards  ceded  to  the  con- 
queror, or  some  other  territory  ceded  in  lieu  of  it. 

Mr.  Morris — The  case  is  precisely  the  same.  Until 
after  the  peace  the  conquest  is  not  complete.  Every  body 
knows  that  until  the  cession  by  treaty,  the  original  owner 
has  the  postliminary  right  to  a  territory  taken  from  him. 
Beyond  all  question,  where  congress  are  compelled  to 
cede  the  territory,  the  judges  can  no  longer  exist,  unless 


84  Mr.  Morris's  Speech  on 

the  new  sovereign  confers  the  office.  Over  such  a  territory 
the  authority  of  the  constitution  ceases,  and  of  course  the 
rights  which  it  confers. 

It  is  said  the  judicial  institution  is  intended  for  the 
benefit  of  the  people,  and  not  of  the  judge;  and  it  is 
complained  of,  that  in  speaking  of  the  office,  we  say  it  is 
his  office.  Undoubtedly  the  institution  is  for  the  benefit 
of  the  people.  But  the  question  remains,  how  will  it  be 
rendered  most  beneficial?  Is  it  by  making  the  judge  inde- 
pendent, by  making  it  his  office;  or  is  it  by  placing  him 
in  a  state  of  abject  dependence,  so  that  the  office  shall  be 
his  to-day  and  belong  to  another  to-morrow?  Let  the 
gentleman  hear  the  words  of  the  constitution;  it  speaks  of 
their  offices,  consequently  as  applied  to  a  single  judge,  of 
his  office,  to  be  exercised  by  him  for  the  benefit  of  the 
people  of  America,  to  which  exercise  his  independence  is 
as  necessary  as  his  office. 

The  gentleman  from  Virginia  has  on  this  occasion 
likened  the  judge  to  a  bridge,  and  to  various  other  objects; 
but,  I  hope  for  his  pardon,  if,  while  I  admire  the  lofty 
flights  of  his  eloquence,  I  abstain  from  noticing  observa- 
tions which  I  conceive  to  be  utterly  irrelevant. 

The  same  honourable  member  has  not  only  given  us 
his  history  of  the  supreme  court,  but  has  told  us  the 
manner  in  which  they  do  business,  and  expressed  his  fears 
that  having  little  else  to  do,  they  will  do  mischief.  We 
are  not  competent,  sir,  to  examine,  nor  ought  we  to  pre- 
judge their  conduct.  I  am  persuaded  that  they  will  do 
their  duty,  and  presume  they  will  have  the  decency  to 
believe  that  we  do  our  duty.  In  so  far  as  they  may  be 
busied  with  the  great  mischief  of  checking  the  legislature 
or  executive  departments,  in  any  wanton  invasion  of  our 
rights,  1  shall  rejoice  in  that  mischief.  I  hope  indeed  they 
will  not  be  so  busied,  because  I  hope  we  shall  give  them 
no  cause.  But  also,  I  hope  they  will  keep  an  eagle  eye 


the  Judiciary  Establishment.  85 

upon  us  lest  we  should.  It  was  partly  for  this  purpose 
they  were  established,  and  I  trust  that  when  properly 
called  on  they  will  dare  to  act.  I  know  this  doctrine  is 
unpleasant.  I  know  it  is  more  popular  to  appeal  to  the 
public  opinion,  that  equivocal,  transient  being,  which 
exists  no  where  and  every  where.  But  if  ever  the  occasion 
calls  for  it,  I  trust  that  the  supreme  court  will  not  neglect 
doing  the  great  mischief  of  saving  this  constitution,  which 
can  be  done  much  better  by  the  deliberations,  than  by 
resorting  to  what  are  called  revolutionary  measures. 

The  honourable  member  from  North  Carolina,  sore 
pressed  by  the  delicate  situation  in  which  he  is  placed, 
thinks  he  has  discovered  anew  argument  in  favour  of  the 
vote  which  he  is  instructed  to  give.  As  far  as  I  can  enter 
into  his  ideas,  and  trace  their  progress,  he  seems  to  have 
assumed  the  position  which  was  to  be  proved,  and  then 
searched  through  the  constitution;  not  to  discover  whether 
the  legislature  have  the  right  contended  for,  but  whether, 
admitting  them  to  possess  it,  there  may  not  be  something 
which  might  comport  with  that  idea.  I  shall  state  the 
honourable  member's  argument,  as  I  understand  it,  and 
if  mistaken,  pray  to  be  corrected.  He  read  to  us  that 
clause  which  relates  to  impeachment,  and  comparing  it 
with  that  which  fixes  the  tenure  of  judicial  office,  has 
observed  that  this  clause  must  relate  solely  to  a  removal 
by  the  executive  power;  whose  right  to  remove,  though 
not  indeed  any  where  mentioned  in  the  constitution,  has 
been  admitted  in  a  practice  founded  on  legislative  con- 
struction. 

That  as  the  tenure  of  the  office  is  during  good  behaviour . 
and  as  the  clause  respecting  impeachment,  does  not  specify 
misbehaviour )  there  is  evidently  a  cause  of  removal,  which 
cannot  be  reached  by  impeachment,  and  of  course  (the 
executive  not  being  permitted  to  remove)  the  right  must 
necessarily  devolve  on  the  legislature,  Is  this  the  honour- 


86  Mr.  Morris's  Speech  on 

able  member's  argument?  If  it  be,  the  reply  is  very  simple. 
Misbehaviour  is  not  a  term  known  in  our  law.  The  idea 
is  expressed  by  the  word  misdemeanor;  which  word  is 
in  the  clause  quoted  respecting  impeachments.  Taking 
therefore  the  two  together,  and  speaking  plain  old  English, 
the  constitution  says:  "  The  judges  shall  hold  their  offices 
so  long  as  they  shall  demean  themselves  well,  but  if  they 
shall  misdemean,  if  they  shall  on  impeachment  be  con- 
victed of  misdemeanor,  they  shall  be  removed."  Thus,  sir, 
the  honourable  member  will  find  that  the  one  clause  is 
just  as  broad  as  the  other.  He  will  see,  therefore,  that  the 
legislature  can  assume  no  right  from  the  deficiency  of 
either,  and  will  find  that  this  clause  which  he  relied  on 
goes,  if  rightly  understood,  to  the  confirmation  of  our 
doctrine. 

Is  there  a  member  of  this  house,  who  can  lay  his  hand 
on  his  heart  and  say,  that,  consistently  with  the  plain 
words  of  our  constitution,  we  have  a  right  to  repeal  this 
law?  I  believe  not.  And  if  we  undertake  to  construe  this 
constitution  to  our  purposes,  and  say  that  the  public 
opinion  is  to  be  our  judge,  there  is  an  end  to  all  constitu- 
tions. To  what  will  not  this  dangerous  doctrine  lead? 
Should  it  to-day  'be  the  popular  wish  to  destroy  the  first 
magistrate,  you  can  destroy  him.  And  should  he  to-mor- 
row be  able  to  conciliate  to  him  the  popular  will,  and  lead 
them  to  wish  for  your  destruction,  it  is  easily  effected. 
Adopt  this  principle,  and  the  whim  of  the  moment  will 
not  only  be  the  law,  but  the  constitution  of  our  country. 

The  gentleman  from  Virginia  has  mentioned  a  great 
nation  brought  to  the  feet  of  one  of  her  servants.  But  why 
is  she  in  that  situation?  Is  it  not  because  popular  opinion 
was  called  on  to  decide  every  thing,  until  those  who  wore 
bayonets  decided  for  all  the  rest.  Our  situation  is  pecu- 
liar. At  present  our  national  compact  can  prevent  a  state 
from  acting  hostilely  towards  the  general  interest.  But  let 


the  Judiciary  Establishment.  87 

this  compact  be  destroyed  and  each  state  becomes  instan- 
taneously vested  with  absolute  sovereignty.  Is  there  no 
instance  of  a  similar  situation  to  be  found  in  history?  Look 
at  tho  states  of  Greece.  They  were  once  in  a  condition 
not  unlike  to  that  in  which  we  should  then  stand.  They 
treated  the  recommendations  of  their  Amphyctionic  coun- 
cil (which  was  more  a  meeting  of  ambassadors  than  a 
legislative  assembly)  as  we  did  the  resolutions  of  the  old 
congress.  Are  we  wise?  so  were  they.  Are  we  valiant? 
They  also  were  brave.  Have  we  one  common  language, 
and  are  we  united  under  one  head?  In  this  also  there  is  a 
strong  resemblance.  But  by  their  divisions,  they  became 
at  first  victims  of  the  ambition  of  Philip,  and  were  at  length 
swallowed  up  in  the  Roman  empire.  Are  we  to  form  an 
exception  to  the  general  principles  of  human  nature,  and 
to  all  the  examples  of  history?  And  are  the  maxims  of 
experience  to  become  false,  when  applied  to  our  fate? 

Some,  indeed,  flatter  themselves,  that  our  destiny  will 
be  like  that  of  Rome.  Such,  indeed,  it  might  be,  if  we 
had  the  same  wise,  but  vile,  aristocracy  under  whose 
guidance  they  became  the  masters  of  the  world.  But  we 
have  not  that  strong  aristocratic  arm,  which  can  seize  a 
wretched  citizen,  scourged  almost  to  death  by  a  remorse- 
less creditor,  turn  him  into  the  ranks,  and  bid  him,  as  a 
soldier,  bear  our  eagle  in  triumph  round  the  globe.  I 
hope  to  God  we  shall  never  have  such  an  abominable  in- 
stitution. But  what,  I  ask,  will  be  the  situation  of  these 
states  (organised  as  they  now  are)  if,  by  the  dissolution 
of  our  national  compact,  they  be  left  to  themselves?  What 
is  the  probable  result?  We  shall  either  be  the  victims  of 
foreign  intrigue,  and  split  into  factions,  fall  under  the 
domination  of  a  foreign  power,  or  else  after  the  misery 
and  torment  of  civil  war,  become  the  subjects  of  an 
usurping  military  despot.  What  but  this  compact!  What 
but  this  specific  part  of  it,  can  save  us  from  ruin?  The 
judicial  power,  that  fortress  of  the  constitution,  is  now  ta 


88  Mr.  Morris's  Speech  on 

be  overturned.  Yes,  with  honest  Ajax,  I  would  not  only 
throw  a  shield  before  it,  I  would  build  around  it  a  wall  ot 
brass.  But  I  am  too  weak  to  defend  the  rampart  against 
the  host  of  assailants.  I  must  call  to  my  assistance  their 
good  sense,  their  patriotism,  and  their  virtue.  Do  not, 
gentlemen,  suffer  the  rage  of  passion  to  drive  reason  from 
her  seat.  If  this  law  be  indeed  bad,  let  us  join  to  remedy 
the  defects.  Has  it  been  passed  in  a  manner  which 
wounded  your  pride  or  roused  your  resentment?  Have,  I 
conjure  you,  the  magnanimity  to  pardon  that  offence.  I 
intreat,  I  implore  you,  to  sacrifice  those  angry  passions  to 
the  interests  of  our  country.  Pour  out  this  pride  of  opinion 
on  the  altar  of  patriotism.  Let  it  be  an  expiatory  libation 
for  the  weal  of  America.  Do  not,  for  God's  sake,  do  not 
suffer  that  pride  to  plunge  us  all  into  the  abyss  of  ruin. 
Indeed,  indeed,  it  will  be  but  of  little,  very  little  avail, 
whether  one  opinion  or  the  other  be  right  or  wrong;  it 
will  heal  no  wounds,  it  will  pay  no  debts,  it  will  rebuild 
no  ravaged  towns.  Do  not  rely  on  that  popular  will 
which  has  brought  us  fraii  beings  into  political  existence? 
That  opinion  is  but  a  changeable  thing.  It  will  soon 
change.  This  very  measure  will  change  it.  You  will  be 
deceived.  Do  not,  I  beseech  you,  in  reliance  on  a  founda- 
tion so  frail,  commit  the  dignity,  the  harmony,  the  exis- 
tence of  our  nation  to  the  wild  wind.  Trust  not  your 
treasure  to  the  waves.  Throw  not  your  compass  and  your 
charts  into  the  ocean.  Do  not  believe  that  its  billows  will 
waft  you  into  port.  Indeed,  indeed,  you  will  be  deceived. 
Oh!  cast  not  away  this  only  anchor  of  our  safety.  I  have 
seen  its  progress.  I  know  the  difficulties  through  which 
it  was  obtained.  I  stand  in  the  presence  of  Almighty  God, 
and  of  the  world.  I  declare  to  you,  that  if  you  lose  this 
character,  never!  no  never!  will  you  get  another.  We 
are  now,  perhaps,  arrived  at  the  parting  point.  Here,  even 
here,  we  stand  on  the  brink  of  fate.  Pause — pause — for 
heaven's  sake  pause. 

Mm 


89 


SPEECH  OF  MR.  RUTLEDGE 

ON  THE  JUDICIARY  ESTABLISHMENT. 

1  HAVE  kept  my  seat,  Mr.  Chairman,  until  this  late 
stage  of  the  debate,  under  a  hope  that  the  arguments  of 
gentlemen  who  advocate  the  passing  of  this  bill,  would 
convince  me  it  is  not  unconstitutional;  but  after  having 
listened  most  attentively  to  them  for  many  days,  I  find 
the  deep  impression  made  upon  my  mind,  that  it  attacks 
the  very  vitals  of  our  constitution,  has  been  fortified  and 
extended  instead  of  being  dismissed. 

It  is  not  necessary,  sir,  for  me  to  call  to  your  recollec- 
tion what  was  the  situation  of  America  anterior  to  the 
formation  of  the  present  government.  Our  state  govern- 
ments had  proved  to  be  mere  ropes  of  sand.  Experience 
had  shown  the  confederation  to  be  miserably  defective  in 
all  its  parts.  Those  evil  times,  when  anarchy  and  jealousy 
distracted  our  state  governments,  and  clashing  interests 
threatened  to  break  our  federal  union,  called  all  America 
upon  its  legs.  The  people  of  this  nation  summoned  their 
wisest  and  best  men  to  meet  in  convention,  to  form  a 
constitution  which  should  promote  the  lasting  welfare  of 
our  country,  and  secure  the  liberties  their  valour  and 
wisdom  had  won. 

The  difficulty  of  the  task  was  fully  equal  to  its  impor- 
tance. In  reviewing  the  histories  of  other  republics,  the 
convention  saw  that  like  the  splendid  shows  of  a  magic 
lantern,  they  had  appeared  and  disappeared  in  almost  the 
same  moment  of  time;  as  had  been  observed  by  a  cele- 
brated writer,  they  rose  like  a  rocket,  and  fell  like  the 
stick.  Although  their  existence  had  every  where  been 

Vol.  II.  M 


90  Mr.  Rutledge's  Speech  on 

transient,  yet  it  had  been  protracted  wherever  the  institu- 
tions of  the  country  had  excited  any  kind  of  veneration 
for  its  judicature.  At  Athens  in  particular,  and  indeed 
throughout  Greece,  the  liberties  of  the  people  were  for  a 
season  preserved  by  the  respect  felt  towards  the  august 
court  of  Areopagus.  Notwithstanding  the  aspiring  ambi- 
tion of  some  of  the  states,  the  intrigues  of  powerful  de- 
magogues, and  the  general  degeneracy  of  manners,  yet 
as  long  as  this  venerable  judicature  was  respected,  Greece 
continued  free.  As  soon  as  it  lost  its  influence,  the  people 
lost  their  liberties.  Taught  by  these  examples  the  value 
of  a  good  judiciary,  the  patriots  who  met  at  Philadelphia, 
determined  to  establish  one  which  should  be  independent 
of  the  executive  and  legislature,  and  possess  the  power 
of  deciding  rightfully  and  finally  on  conflicting  claims 
between  them.  The  convention  laid  their  hand  on  this 
invaluable  and  protecting  principle;  in  it  they  discovered 
what  was  essential  to  the  security  and  duration  of  free 
states;  what  would  prove  the  shield  and  palladium  of  our 
liberties;  and  they  boldly  said,  notwithstanding  the  dis- 
couragement in  other  countries,  and  in  times  past,  to 
efforts  in  favour  of  republicanism,  our  experiment  shall 
not  miscarry,  for  we  will  establish  an  independent  judi- 
ciary; we  will  create  an  asylum  to  secure  the  govern- 
ment, and  protect  the  people,  in  all  the  revolutions  of  opi- 
nion, and  struggles  of  ambition  and  faction.  They  did 
establish  an  independent  judiciary.  There  is  nothing,  I 
think,  more  demonstrable  than  that  the  convention  meant 
the  judiciary  to  be  a  co-ordinate  and  not  a  subordinate 
branch  of  the  government.  This  is  my  settled  opinion; 
but  on  a  subject  so  momentous  as  this  is,  I  am  unwilling 
to  be  directed  by  the  feeble  lights  of  my  own  understand- 
ing; and  as  my  judgment,  at  all  times  very  fallible,  is  lia- 
ble to  err  much  where  my  anxieties  are  much  excited,  I 
have  had  recourse  to  other  sources  for  the  true  meaning 


the  Judiciary  Establishment.  91 

of  this  constitution.  During  the  throes  and  spasms,  as 
they  have  been  termed,  which  convulsed  this  nation, 
prior  to  the  late  Presidential  election,  strong  doubts  were 
very  strongly  expressed,  whether  the  gentleman,  who 
now  administers  this  government,  was  attached  to  it  as 
it  is.  Shortly  after  his  election,  the  legislature  of  Rhode 
Island  presented  a  congratulatory  address,  which  our 
chief  magistrate  considered  as  soliciting  some  declaration 
of  his  opinions  of  the  federal  constitution;  and  in  his  an- 
swer deeming  it  fit  to  give  them,  he  said,  "  the  consti- 
tution shall  be  administered  by  me,  according  to  the  safe 
and  honest  meaning  contemplated  by  the  plain  under- 
standing  of  the  people  at  the  time  of  its  adoption;  a  mean- 
ing to  be  found  in  the  explanations  of  those  who  advoca- 
ted, not  those  who  opposed  it.  These  explanations  are 
preserved  in  the  publications  of  the  time."  To  this  high 
authority  I  appeal.  To  the  honest  meaning  of  the  instru- 
ment; the  plain  understanding  of  its  framers.  I,  like  Mr. 
Jefferson,  appeal  to  the  opinions  of  those  who  were  the 
friends  of  the  constitution  at  the  time  it  was  submitted 
to  the  states.  Three  of  our  most  distinguished  statesmen, 
who  had  much  agency  in  framing  this  constitution,  find- 
ing that  objections  had  been  raised  against  its  adoption, 
and  that  much  of  the  hostility  produced  against  it  had 
resulted  from  a  misunderstanding  of  some  of  its  provi- 
sions, united  in  the  patriotic  work  of  explaining  the  true 
meaning  of  its  framers.  They  published  a  series  of  pa- 
pers, under  the  signature  of  Publius,  which  were  after- 
wards republished  in  a  book  called  the  Federalist.  This 
cotemporaneous  exposition  is  what  Mr.  Jefferson  must 
have  adverted  to,  when  he  speaks  of  the  publications  of 
the  time.  From  this  very  valuable  work,  for  which  we 
are  indebted  to  Messrs.  Hamilton,  Madison  and  King, 
I  will  take  the  liberty  of  reading  some  extracts,  to  which 
I  solicit  the  attention  of  the  committee.  In  the  seventy- 


92  Mr.  liutledge's  Speech  on 

eighth  number  we  read  "  good  behaviour  for  the  continu- 
ance in  office  of  the  judicial  magistracy,  is  the  most  va- 
luable of  the  modern  improvements  in  the  practice  of 
government.  In  a  republic,  it  is  a  barrier  to  the  encroach- 
ments and  oppressions  of  the  representative  bod)-.  And 
it  is  the  best  expedient  that  can  be  devised  in  any  go- 
vernment, to  secure  a  steady,  upright,  and  impartial  ad- 
ministration of  the  laws.  The  judiciary,  in  a  government 
where  the  departments  of  power  are  separate  from  each 
other,  from  the  nature  of  its  functions,  will  always  be  the 
least  dangerous  to  the  political  rights  of  the  constitution. 
It  has  no  influence  over  the  sword  or  the  purse,  and  may 
truly  be  said  to  have  neither  force  nor  -will,  but  merely 
judgment.  The  complete  independence  of  the  courts  of 
justice  is  essential  in  a  limited  constitution,  one  contain- 
ing specified  exceptions  to  the  legislative  authority;  such 
as  that  it  shall  pass  no  ex  post  facto  law,  no  bill  of  attain- 
der, &c.  &c.  Such  limitations  can  be  preserved  in  prac- 
tice no  other  way  than  through  the  courts  of  justice, 
whose  duty  it  must  be  to  declare  all  acts  manifestly  con- 
trary to  the  constitution,  void.  Without  this,  all  the  re- 
servations of  particular  rights  or  privileges,  of  the  states 
or  the  people,  would  amount  to  nothing.  Where  the  will 
of  the  legislature,  declared  in  its  statutes,  stands  in  oppo- 
sition to  that  of  the  people,  declared  in  the  constitution, 
the  courts  designed  to  be  an  intermediate  body  between 
the  people  and  the  legislature,  are  to  keep  the  latter  with- 
in the  limits  assigned  to  their  authority.  The  convention 
acted  wisely  in  establishing  good  behaviour  as  the  tenure 
of  judicial  offices.  Their  plan  would  have  been  inexcu- 
sably defective  had  it  wanted  this  important  feature  of 
good  government."  The  authority  I  have  read,  proves 
to  demonstration  what  was  the  intention  of  the  convention 
on  this  subject;  that  it  was  to  establish  a  judiciary  com- 
pletely independent  of  the  executive  and  legislature,  and 


the  Judiciary  Establishment.  93 

to  have  judges  removable  only  by  impeachment.  This 
was  not  only  the  intention  of  the  general  convention,  but 
of  the  state  conventions  when  they  adopted  this  constitu- 
tion. Nay,  sir,  had  they  not  considered  the  judicial  pow- 
er to  be  co-ordinate  with  the  other  two  great  departments 
of  government,  they  never  would  have  adopted  the  con- 
stitution. I  feel  myself  justified  in  making  this  declara- 
tion, by  the  debates  in  the  different  state  conventions. 
From  those  of  the  Virginia  convention,  I  will  read  some 
extracts,  to  show  what  were  the  opinions  of  the  speakers 
there  of  both  political  parties.  The  friends  of  the  consti- 
tution insisted  that  our  federal  judges  would  be  indepen- 
dent of  every  thing  but  their  behaviour,  and  their  God. 
— The  opposers  of  the  constitution  insisted,  that  they 
would  not  be  perfectly  independent  of  the  legislature, 
because  they  might  increase  their  salaries.  Affectionately 
attached  to  the  sovereign  rights  of  the  states  and  the  peo- 
ple, the  opposers  of  the  constitution  displayed  all  the  sus- 
picion of  jealous  lovers.  They  supposed  the  judges  would 
not  be  completely  independent,  and  insisted  if  they  were 
not,  there  would  soon  be  a  concentration  of  all  power  in 
the  legislature,  and  a  perfect  despotism  in  our  country, 
Hence  it  appears  that  both  parties  thought  the  judges 
ought  to  be  beyond  the  reach  of  the  legislature,  except 
by  impeachment.  The  friends  of  the  constitution  insisted 
they  were  so;  the  opposers  feared  they  were  not.  Let  us 
attend  to  the  debates  in  the  convention  of  Virginia — 

General  Marshall,  the  present  chief  justice,  says,  *  can 
the  government  of  the  United  States  go  beyond  those 
delegated  powers?  If  they  were  to  make  a  law,  not  war- 
ranted by  any  of  the  powers  enumerated,  it  would  be 
considered  as  an  infringement  of  the  constitution  which 
they  are  to  guard:  they  would  not  consider  such  a  law  as 
coming  under  their  jurisdiction:  they  would  declare  it 
void.''  Mr.  Grayson,  who  oppose^  the  constitution,  we 


94  Mr.  Rut  ledge's  Speech  on 

find  saying,  '  the  judges  will  not  be  independent,  because 
their  salaries  may  be  augmented.  This  is  left  open.  What 
if  you  give  600/.  or  1000/.  annually  to  a  judge?  'Tis  but 
a  trifling  object,  when  by  that  little  money  you  purchase 
the  most  invaluable  blessing  that  any  country  can  enjoy. 
The  judges  are  to  defend  the  constitution.'  Mr.  Madi- 
son, in  answer,  says,  *  I  wished  to  insert  a  restraint  on 
the  augmentation,  as  well  as  diminution  of  the  compensa- 
tion of  the  judges — but  I  was  over-ruled;  the  business 
of  the  courts  must  increase.  If  there  was  no  power  to 
increase  their  pay,  according  to  the  increase  of  business, 
during  the  life  of  the  judges,  it  might  happen  that  there 
would  be  such  an  accumulation  of  business,  as  would 
reduce  the  pay  to  a  most  trivial  consideration.'  Here  we 
find  Mr.  Madison  not  using  the  words  good  behaviour; 
but  he  says  (what  we  say  was  meant  by  good  behaviour) 
during  the  life  of  the  judges.  The  opinions  of  Mr.  Madi- 
son I  deem  conclusive,  as  to  the  meaning  of  the  words 
good  behaviour;  but  I  will  read  what  was  said  by  Mr. 
Nicholas,  which  is  substantially  the  same,.  [Here  Mr. 
Rutledge  read  several  extracts  from  the  debates  in  the 
Virginia  convention.]  These  quotations  show  that,  in 
Virginia  at  least,  the  public  wish  and  intention  was  to 
have  an  independent  judiciary.  Let  us  now  see  what  was 
the  opinion  on  this  subject  of  the  first  congress  under 
the  constitution,  when  the  first  judiciary  bill  was  debated. 
Mr.  Stone  says,  c  the  establishment  of  the  courts  is  im- 
mutable.'' Mr.  Madison  says,  '  the  judges  are  to  be  re- 
moved only  on  impeachment,  and  conviction  before  con- 
gress.' Mr.  Gerry,  who  had  been  a  member  of  the  gene- 
ral convention,  expresses  himself  in  this  strong  and  une- 
quivocal manner:  '  The  judges  will  be  independent,  and 
no  power  can  remove  them;  they  will  be  beyond  the 
reach  of  the  other  powers  of  the  government;  they  will 
be  unassailable,  and  cannot  be  affected  but  by  the  united 


the  Judiciary  Establishment.  95 

voice  of  America,  and  that  only  by  a  change  of  govern- 
ment.' Here  it  is  evident  Mr.  Gerry  supposed  a  project 
like  the  present  could  only  be  effected  by  the  people, 
through  the  medium  of  a  convention — he  did  not  sup- 
pose it  possible  for  congress  ever  to  grasp  at  this  power. 
The  same  opinions  were  held  by  Mr.  Lawrence  and  Mr. 
Smith.  [Here  Mr.  Rutledge  read  further  extracts  from 
the  congressional  debates.]  In  addition  to  those  high 
authorities,  permit  me,  Mr.  Chairman,  to  read  some  parts 
of  the  lectures,  on  the  judiciary  of  the  United  States,  of 
the  celebrated  judge  Tucker,  the  present  professor  of  law 
at  the  university  of  William  and  Mary,  in  Virginia. 
[Here  Mr.  Rutledge  read  from  Tucker's  lectures.]  I 
wish  gentlemen  who  compare  the  official  tenure  of  our 
judges  with  those  of  Great  Britain,  to  attend  to  the  wide 
distinction  between  their  independency,  as  shown  by  the 
learned  judge  and  professor,  whose  lectures  I  have  cited 
— he  shows,  that  the  judges  in  England  have  only  a  legal 
independence,  while  in  America  they  enjoy  a  constitu- 
tional independence. 

The  advocates  of  this  bill  say,  the  people  could  not 
have  meant  to  establish  an  independent  judiciary,  because 
a  permanent  body  of  men,  beyond  all  control,  would 
prove  hostile  to  the  liberties  of  the  people.  Sir,  we  do  not 
contend  for  any  such  establishment — we  do  not  wish  for 
a  judiciary  permanent  and  beyond  control — No,  sir,  all 
we  insist  upon  is,  that  the  judges  are  liable  to  that  sort 
of  control  only  which  the  constitution  establishes,  that 
good  behaviour  is  the  tenure  by  which  they  hold  their 
office,  and  that  they  cannot  be  removed  from  it  but  by 
impeachment.  That  the  judicial  authority  was  never  de- 
signed to  depend  upon  the  executive  and  legislative 
powers,  but  in  some  sort  to  balance  them.  That  our 
federal  judicature  was  meant  to  give  to  the  government 
a  security  to  its  justice  against  its  power — it  was  con- 


96  Mr.  Rutledge's  Speech  on 

trived  to  be,  as  it  were,  something  exterior  to  the  state, 
The  honourable  gentleman  from  Vermont  (judge  Smith) 
who  preceded  me,  says,  our  construction  of  the  constitu- 
tion is  derived  from  implication.  This  is  not  the  case, 
sir,  we  require  no  ingenuity,  no  sophistry,  no  metaphy- 
sical distinctions  to  bear  us  out  in  our  construction.  We 
resort  to  the  plain  meaning  of  the  words  of  the  constitu- 
tion. Knowing  the  constitution  would  contain  the  seeds 
of  its  dissolution,  should  it  contain  articles  liable  to  ambi- 
guity, the  convention  cautiously  avoided  obscurities. 
They  selected  as  plain  words  as  any  in  our  language,  to 
represent  their  intention  of  having  an  independent  judi- 
ciary— they  used  words  that  are  intelligible  to  almost 
every  capacity.  Let  us  read  them:  '  The  judges,  both  of 
the  supreme  and  inferior  courts,  shall  hold  their  office 
during  good  behaviour.'  These  are  the  words  of  the 
constitution,  and  what  words,  sir,  could  have  been  found 
more  express,  more  unequivocal  in  their  meaning?  Let 
us  suppose,  Mr.  Chairman,  that  instead  of  being  the 
legislature,  and  instead  of  having  the  constitution  before 
us  upon  trial,  and  (as  is  the  case  I  fear)  being  about  to 
sign  its  death  warrant,  we  were  a  convention  called  by 
the  people  to  form  a  constitution;  that  we  had  determined 
to  establish  an  independent  judiciary;  to  have  judges 
removable  only  by  impeachment;  that  having  decided 
this  principle,  it  was  referred  to  a  committee  to  draft  a 
clause  conformably  to  the  idea  of  having  the  judicial  en- 
tirely independent  of  executive  and  legislative  power, 
and  that  this  service  was  assigned  to  the  honourable  gen- 
tleman from  Virginia,  (Mr.  Giles)  could  his  ingenuity, 
could  his  knowledge  of  our  language,  furnish  words  to 
represent  the  intention  of  having  an  independent  judici- 
ary, more  appropriate,  more  unequivocal,  more  familiar, 
than  the  words  used  by  the  convention,  and  which  I  have 
just  read?  They  are  explicit,  simple,  unqualified,  and  at 


the  Judiciary  Establishment.  97 

the  same  time  imperative.  The  understanding  of  the  con- 
vention, of  the  states,  and  of  the  people  at  large  was,  that 
our  judiciary  should  be  independent.  They  deemed  this 
constitutional  check  essential  to  the  duration  of  the  go- 
vernment; and  until  the  fourth  day  of  last  March,  I  be- 
lieve the  judiciary  was  considered  as  sacred.  The  state 
governments,  and  the  people,  and  the  friends  of  our  fede- 
ral union,  reverenced  it  as  the  fortress  and  ark  of  their 
safety. 

While  this  shield  remains  to  the  states,  it  will  be  diffi- 
cult to  dissolve  the  ties  which  knit  and  bind  them  toge- 
ther. As  long  as  this  buckler  remains  to  the  people,  they 
cannot  be  liable  to  much  or  permanent  oppression.  The 
government  may  be  administered  with  indiscretion,  and 
with  violence — offices  may  be  bestowed  exclusively  upon 
those  who  have  no  other  merit  than  that  of  carrying  votes 
at  elections — the  commerce  of  our  country  may  be  de- 
pressed by  nonsensical  theories,  and  public  credit  may 
suffer  from  bad  intentions — but  so  long  as  we  have  an 
independent  judiciary,  the  great  interests  of  the  people 
will  be  safe.  Neither  the  president,  nor  the  legislature 
can  violate  their  constitutional  rights.  Any  such  attempt 
would  be  checked  by  the  judges,  who  are  designed  by 
the  constitution  to  keep  the  different  branches  of  the  go- 
vernment within  the  spheres  of  their  respective  orbits, 
and  say,  thus  far  shall  you  legislate  and  no  further.  Leave 
to  the  people  an  independent  judiciary,  and  they  will 
prove  that  man  is  capable  of  governing  himself — they 
will  be  saved  from  what  has  been  the  fate  of  all  other 
republics,  and  they  will  disprove  the  position,  that  go- 
vernments of  a  republican  form  cannot  endure.  I  did 
hope,  from  the  promises  made  by  the  honourable  gentle- 
man from  Virginia,  (Mr.  Giles)  on  a  former  occasion, 
when  we  attempted  to  postpone  this  bill,  that  he  would 
have  given  it  an  unimpassioned  consideration — if  it  were 

Vol.  II.  N 


98  Mr.  Rutledge's  Speech  on 

possible  for  him  to  dismiss  party  feelings,  and  argue  any 
question  upon  its  real  merits,  it  was  to  be  hoped  he  would 
have  given  a  cool  and  deliberate  consideration  to  this  all 
important  subject,  and  argued  it  upon  the  ground  of  un- 
constitutionality. But  unmindful  of  his  promise  not  to 
consider  this  as  a  party  question,  the  gentleman  prefaced 
his  observations  with  saying  he  designed  to  make  them 
personal. 

His  preliminary  remarks  were  highly  afflictive  to  my- 
self and  friends — we  deprecated  this  course,  but  the  gen- 
tleman's crimination  must  be  deemed  a  justification  of 
the  recrimination  which  he  has  rendered  necessary.  This 
is  a  painful  task,  and  if  gentlemen  should  feel  themselves, 
or  their  friends  wounded  by  any  of  our  observations, 
they  must  recollect  the  situation  in  which  they  have 
placed  us,  and  that  the  necessity  of  defending  ourselves 
has  been  imposed  upon  us  by  their  attacks.  In  a  speech 
which  occupied  two  hours,  ten  minutes  only  of  that  time 
were  given  to  a  consideration  of  the  constitutionality  of 
this  measure,  and  then  the  gentleman  found  it  convenient 
to  employ  the  rest  of  it  in  fulminating  his  anathemas 
against  the  past  administrations,  and  reiterating  those  in- 
vectives and  censures,  which  on  all  past  occasions  he  has 
indulged  himself  in  bestowing  upon  those  who  are  no 
longer  in  power.  Whether  attacks  are  to  be  continued 
upon  the  past  administrations,  to  divert  the  public  eve 
from  the  present  administration,  or  whether  they  are  cal- 
culated to  raise  a  smoke,  under  the  cover  of  which  gen- 
tlemen may  march  unobserved  to  attack  the  vitals  of  our 
constitution,  is  best  known  to  themselves.  The  gentle- 
man from  Virginia  has  rendered  homage  to  the  judiciary 
of  Great  Britain — acknowledges  much  of  the  prosperity 
of  that  nation  to  be  produced  by  the  independency  of 
their  judges — says  our's  are  at  least  as  independent,  but 
that  the  doctrine  of  making  them  completely  independent 


the  Judiciary  Establishment.  99 

is  a  monstrous  one.  Sir,  there  is  no  kind  of  analogy  be- 
tween the  governments  of  America  and  Great  Br'ita'n, 
and  none  between  the  situation  of  the  judges  in  that  and 
in  this  country.  The  people  of  England  gained  much, 
and  had  an  abundant  source  of  oppression  dried  up,  when 
they  got  their  judges  made  independent  of  the  monarch, 
whose  creatures  they  had  been,  and  whose  arbitrary  mea- 
sures they  had  been  obliged  to  support.  But,  sir,  it  was 
impossible  to  make  the  judges  a  check  upon  parliament, 
for  nothing  in  that  government  is  independent  of  the  par- 
liament. In  this  country  things  are  far  different;  we  have 
a  written  constitution — the  people   have  given  certain 
powers  to  the  executive,  other  defined  powers  to  con- 
gress, and  delegated  other  powers  to  the  judiciary.  But 
the  gentleman  from  Virginia  wishes  to  make  congress 
as  powerful  as  the  parliament  of  Great  Britain — he  wants 
the  legislature  in  America  to  be  (like  the  parliament  in 
England)  without  control:  he  wants  to  destroy  that  check, 
which  the  people  in  their  constitution  formed  for  us — 
he  wants  to  prostrate  that  protecting  principle,  which  was 
never  before  known  in  a  republican  government,  and  for 
the  want  of  which  all  republics  have  perished.  In  En- 
gland, the  independence  of  the  judiciary,  as  far  as  it  goes, 
I  highly  appreciate,  but  I  venerate  the  independence  of 
our  judges,  (as  designed  by  the  people  when  they  adopt- 
ed the  constitution)  because  it  is  complete — in  England 
it  is  not.  There  they  have  a  legal  independence;  here  a 
constitutional   one.  Although   the  independence   of  the 
judges  in  England  is  partial,  yet  it  has  been  productive 
of  vast  good;  although  they  may  be  said  to  be  in  some 
measure  still  dependent  on  the  monarch,  in  as  much  as 
pensions  and  places  are  in  his  gift,  yet  it  is  well  known, 
the  independence  they  do  possess  of  the  crown,  prevents 
reasons  of  state  from  entering  the  courts,  and  that  the 
royal  will  sinks  into  nothing  and  disappears  at  the  seat  of 


100  Mr.  Rut  ledge's  Speech  on 

justice,  when  opposed  by  the  law.  From  many  proofs 
of  this  fact,  I  beg  leave  to  select  the  case  of  Mr.  Wilkes, 
at  the  time  of  his  second  election,  and  when  he  had  been 
outlawed;  although  the  whole  power  of  the  crown  was 
most  actively  employed  to  crush  this  obnoxious  subject, 
yet  lord  Mansfield,  and  the  whole  bench  of  judges,  de- 
clared the  outlawry  contrary  to  the  principles  of  common 
law,  and  reversed  it,  as  being  illegal.  Permit  me  to  read 
this  case — (here  Mr.  R.  read  an  account  of  the  proceed- 
ings, and  the  whole  of  lord  Mansfield's  celebrated  speech.) 
The  judiciary,  on  this  occasion,  we  see  checking  arbitrary 
executive  measures,  because  they  were  independent  of 
the  executive. 

In  America,  the  judicial  power  was  designed  as  a  con- 
stitutional check  upon  both  the  executive  and  legislature 
— but  gentlemen  on  the  other  side,  deprecating  all  con- 
trol, are  for  prostrating  the  check  imposed  by  the  people 
on  their  representatives,  and  the  destruction  of  which 
will  make  them  omnipotent.  The  gentleman  from  Virgi- 
nia says  the  judicial  power  was  not  formed  by  the  con- 
stitution. I  shall  not  be  surprised  by  any  declaration  he 
may  make  about  the  meaning  of  the  constitution  after 
this.  Sir,  the  judicial  power  is  established  by  the  consti- 
tution, equally  with  the  executive  and  legislature.  The 
organization  of  the  courts  had  been  left  to  congress;  but 
the  instrument  under  which  we  act  has  established  the 
judiciary,  and  has  also  assigned  its  duties.  A  charge  has 
been  made  against  us  by  the  honourable  gentleman,  which 
I  must  deny,  I  plead  not  guilty  to  it,  and  say  he  is  wholly 
mistaken.  He  has  charged  us  with  having  changed  with 
the  times,  and  with  having  formerly  advocated  the  exten- 
sion of  the  powers  of  this  house.  Sir,  this  is  not  the  case, 
tempora  mutantur,  sed  non  mutamur  in  Mis.  Knowing 
how  strongly  disposed,  in  governments  like  our's,  the 
popular  branch  always  is,  to  grasp  at  illegitimate  powers, 


the  Judiciary  Establishment.  101 

we  have  in  times  past  struggled  hard  for  preserving  to 
all  the  branches  of  the  government,  the  powers  delegated 
to  them  respectively  by  the  constitution;  we  have  ever 
been  watchful  of  executive  and  judicial  rights,  and  de- 
fended them  from  the  encroachments  attempted  by  the 
legislature.  The  gentleman  from  Virginia  must  permit 
me  to  call  to  his  memory  the  course  of  conduct  we  pur- 
sued on  a  very  memorable  occasion,  when  he  and  his 
friends  wished  this  house  to  arrogate  executive  powers. 
I  refer  to  the  proceedings  on  a  motion  made  by  an  ho- 
nourable gentleman,  then  his  colleague,  who  is  not  now 
a  member  of  this  house,  (Mr.  Nicholas)  in  the  debate  on 
the  foreign  intercourse  bill.  Mr.  Nicholas  said,  "  I  be- 
lieve all  governments  like  our's,  tend  to  produce  a  union 
and  consolidation  of  all  its  parts  in  the  executive  depart- 
ment, and  the  limitations  of  each  other  will  be  destroyed 
by  executive  influence,  unless  there  is  a  constant  opera- 
tion on  the  part  of  the  legislature  to  resist  this  overwhelm- 
ing power.  A  representative  government  may  be  made 
the  most  oppressive,  and  yet  preserve  all  its  constitutional 
forms,  and  the  legislature  shall  appear  to  act  upon  its  own 
discretion,  whilst  that  discretion  shall  have  ceased. 
Where  under  our  government  the  executive  has  an  in- 
fluence over  the  legislature,  the  executive  is  capable  of 
carrying  its  views  into  effect,  in  a  manner  superior  to 
what  can  be  done  in  a  despotic  monarchy.  Mischiefs  will 
be  carried  further,  because  the  people  will  be  inclined  to 
submit  to  a  government  of  its  own  choosing.  Monarchs 
cannot  carry  their  oppression  so  far  without  resistance  as 
republics.  Suppose  executive  patronage  had  extended 
its  influence  into  the  legislature,  and  that  in  consequence 
of  a  thirst  for  office,  majorities  were  formed  in  both 
branches  of  the  legislature,  devoted  to  the  views  of  the 
executive;  where  would  be  a  check  to  objects  hostile  to 
the  public   good?    In  what  branch  of  the  government 


102  Mr.  Rutledge's  Speech  on 

would  you  look  for  it?  Was  it  the  senate?  Will  you  look 
to  this  house?  The  majorities  are  humble  expectants  of 
office.  Where  then  will  you  find  any  thing  capable  of 
controlling  the  overbearing  influence  of  the  executive?  It 
must  be  in  small  and  feeble  minorities,  who  by  their  op- 
position, and  attention  to  the  interests  of  the  people, 
against  arbitrary  power,  may  rouse  the  people  to  a  sense 
of  their  danger,  and  force  the  public  sentiment  to  be  re- 
spected; this  he  conceived  would  be  the  only  check." 
It  hence  appears,  that  those  gentlemen  have  availed 
themselves  of  every  occasion  to  extend  the  powers  of 
congress,  and  had  their  attempts  been  successful,  we 
should,  ere  this,  have  had  a  consolidated  government — 
a  kind  of  government  which  the  people  of  this  country 
never  wished  to  establish,  and  which  is  incompatible 
with  their  best  rights.  The  gentleman  from  Virginia, 
whose  argument  I  have  cjuoted  on  the  subject  of  the 
foreign  intercourse  bill,  shows  that  those  who  were  then 
in  the  minority,  extended  their  project  so  far  as  to  eount 
upon  the  minority  to  check  the  powers  of  the  other  de- 
partments of  government.  Not  so,  sir,  is  the  case  with 
us;  we  do  not  count  upon  the  efforts  of  feeble  minorities 
— we  do  not  wish  to  guard  the  constitution  by  appeals  to 
the  people,  we  will  do  nothing  calculated  to  produce  in- 
surrection, we  do  not  want  to  protect  the  great  charter 
of  our  rights  by  the  bayonet.  No,  sir,  we  rely  on  honest 
and  legitimate  means  of  defence;  we  wish  to  check  these 
gentlemen  only  with  constitutional  checks.  The  people 
of  America  say,  in  their  constitution,  the  judiciary  is  de- 
signed as  a  check  upon  the  legislature  and  executive,  and 
as  a  barrier  between  the  people  and  the  government.  We 
say  it  is  the  sheet  anchor,  which  will  enable  us  to  ride 
out  the  tornado  and  the  tempest,  and  that  if  we  part  from 
it  there  is  no  safety  left;  that  it  is  the  only  thing  which 
can  preserve  us  from  the  perilous  lee  shore,  the  rocks 


the  Judiciary  Establishment.  103 

and  the  quicksands  where  all  other  republics  have  perish- 
ed. The  judiciary  is  the  ballast  of  the  national  ship — 
throw  it  overboard  and  she  must  upset. 

[Mr.  Giles  begged  leave  to  explain;  he  said  the  gen- 
tleman had  not  quoted  his  arguments  fairly;  he  never 
held  the  ideas  ascribed  to  him;  he  certainly  had  not  said 
the  gentleman  from  South  Carolina  wished  on  former 
occasions  to  confide  power  to  the  popular  branch  of  the 
government;  the  gentleman  from  South  Carolina,  he  be- 
lieved, never  wished  this,  or  any  other  popular  branch 
of  government,  trusted  with  power.] 

Mr.  Rutledge  said,  on  a  subject  so  momentous  as  this 
he  would  not  trust  to  his  memory;  that  he  had  taken 
down  the  words  of  the  gentleman  from  Virginia;  he  cer- 
tainly did  not  mean  to  misrepresent  him,  and  was  sorry 
he  had  supposed  he  had  not  quoted  him  fairly.  It  has 
been  further  said  by  this  gentleman,  that  as  the  judiciary 
was  established  for  the  benefit  of  the  people,  and  is  main- 
tained by  their  money,  the  people  must  wish  it  put  down 
when  the  proper  authority  tells  us  it  has  no  duties  to  per- 
form and  is  a  mere  sinecure.  I  should  be  glad  to  know, 
sir,  what  is  meant  by  the  proper  authority;  are  we  to  judge 
in  this  business,  or  is  the  executive  to  judge  for  us?  Sir, 
the  executive  has  seen  fit  to  judge  for  us,  but  I  believe 
he  has  gone  beyond  the  line  of  his  duty;  and  it  would  be 
more  proper  to  call  this  document,  now  in  my  hand,  an 
officious  than  an  official  act.  However  unpleasant  it  may 
be  to  gentlemen  to  call  this  an  executive  measure,  the 
great  solicitude  discovered  by  the  president  to  get  dis- 
embarrassed of  this  most  salutary  constitutional  check, 
proves  it  his  measure;  it  is  not  the  measure  of  congress, 
nor  of  the  people,  but  of  the  executive.  Not  satisfied  with 
calling  the  attention  of  congress  to  this  subject,  he  has,  in 
his  zeal  to  furnish  arguments  to  those  who  support  here 
his  measures,  given  us  a  table,  showing  what  business 


104  Mr.  Rutledge's  Speech  on 

had  been  done  in  the  federal  courts  prior  to  the  late  or- 
ganization of  them.  Had  the  former  president  furnished 
the  late  congress  with  such  a  document  as  this,  it  would 
have  been  considered  as  abundant  evidence  of  the  incon- 
venient organization  of  the  federal  courts,  and  furnished 
arguments  for  the  change  in  the  system  which  we  did 
make;  the  result  of  this  document  is,  that  owing  to  the 
inconvenient  arrangement  of  the  system,  suitors  were  de- 
terred from  entering  the  national  courts.  It  shows  how 
insufficient  the  provision  for  doing  business  was,  under 
the  ancient  system,  and  not  how  little  there  is  to  do.  In 
a  nation  so  great,  and  so  growing  in  greatness  as  our's  is; 
among  a  people  so  commercial,  so  enterprising,  and  so 
attached  to  right,  as  are  the  people  of  this  country,  there 
must  be  much  law  or  there  will  be  no  justice.  But  had 
the  late  executive  furnished,  unsolicited  by  congress, 
such  a  document,  the  whole  nation  would  have  rung  with 
censures.  He  would  have  been  charged  with  considering 
congress  as  a  mere  bureau — a  committee  or  commune 
through  which  the  executive  was  to  make  his  projects 
and  his  propensities  felt.  In  this  document,  No.  8,  we  see 
the  arm  of  the  executive  raised  against  the  judiciary,  and 
in  his  message  we  hear  him  say  it  must  fall.  If  he  had 
contented  himself  with  merely  directing  our  attention  to 
the  law  he  wishes  repealed,  we  might  have  obtained  much 
more  useful  information  for  ourselves  than  what  he  has 
been  pleased  to  give.  If  he  had  only  adverted  to  this  sub- 
ject, as  one  requiring  the  consideration  of  congress,  and 
they  had  wished  for  information,  they  would  have  called 
upon  the  proper  officer  for  it,  and  have  directed  the  at- 
torney general  to  'furnish  a  table,  showing  what  business 
had  been  done  in  the  circuit  courts  since  the  time  of  their 
establishment.  Such  a  document  would  have  shown  whe- 
ther the  existing  law  be  beneficial  or  not;  but  the  presi- 
dent, it  seems,  did  not  deem  it  wise  to  leave  to  us  the 


the  Judiciary  Establishment.  105 

usual  course  of  obtaining  information;  perhaps  he  had 
sufficient  reasons  for  this;  probably  such  a  document  as 
I  have  mentioned,  would  have  given  a  result  not  suited 
to  executive  views.  It  would  have  shown  that  much  im- 
portant business  had  been  done  in  the  circuit  courts,  al- 
though they  have  had  but  a  short  existence.  Whether  the 
executive  was  incited  to  act  with  the  promptitude  he  did, 
to  prevent  its  being  known  of  what  vast  utility  the  law 
is,  it  is  not  for  me  to  say.  I  must  be  permitted,  however, 
Mr.  Chairman,  to  say,  that  having  passed  the  last  sum- 
mer in  the  eastern  states,  I  know,  that  in  that  section  of 
the  union,  the  circuit  court  was  fully  occupied  during 
its  session.  It  is  within  my  own  knowledge,  that  at  Ports- 
mouth, in  New  Hampshire,  there  was  much  business 
done;  at  Boston  there  was  a  great  deal  of  important  bu- 
siness despatched  much  to  the  satisfaction  of  suitors,  and 
I  learned  from  an  authentic  source,  that  the  court  was  a 
highly  popular  one.  At  Newport  in  Rhode  Island,  there 
was  so  much  business,  that  the  court  was  under  the  ne- 
cessity of  holding  evening  sessions.  In  Vermont  I  know 
that  much  business  was  done,  and  done  much  to  the  sa- 
tisfaction of  the  public.  From  the  gentlemen  of  the  bar 
in  New-Jersey,  we  have  a  memorial,  stating  that  there 
had  been  many  causes  tried  in  the  circuit  court  in  that 
state.  In  Philadelphia  the  gentlemen  of  the  bar,  of  both 
political  parties,  have  united  in  informing  us,  that  they 
deem  the  continuance  of  this  court  not  only  useful  but 
necessary.  From  the  chamber  of  commerce  at  New 
York,  and  from  the  merchants  in  Philadelphia,  we  have 
received  petitions,  praying  for  a  continuance  of  the  law, 
which  has  been  denounced,  and  which  the  executive 
thinks  unnecessary.  These  facts  make  a  mass  of  high 
evidence,  which  on  ordinal  occasions  would  weigh 
much.  But  I  fear  it  will  not  preserve  the  law  in  question. 
Vol.  IT.  O 


106  Mr.  Rutledge's  Speech  on 

It  has  been  frowned  upon  from  high  authority,  and  I  fear 
it  must  perish. 

Sir,  this  document,  No.  8,  is  as  little  calculated  to  serve 
the  purposes  of  gentlemen  who  appeal  to  it,  as  is  the 
document  produced  some  days  past  by  a  gentleman  from 
Virginia  (Mr.  Thompson.)  He  gave  us  a  record  from  the 
court  of  chancery  in  Virginia,  to  show  how  much  busi- 
ness there  is  done  in  that  court,  where  he  says  there  is 
but  one  judge,  and  his  salary  is  only  1500  dollars.  The 
honourable  gentleman  says,  in  Virginia  they  have  but 
one  chancellor,  with  the  salary  of  1500  dollars,  who  ren- 
ders as  much  service  as  all  the  national  courts;  and  to 
prove  this  he  reads  to  us  a  certificate  from  the  clerk  of  the 
court  of  chancery,  stating  that  on  the  chancery  docket 
there  were  tzvo  thousand  six  hundred  and  twenty  seven 
causes.  This  paper  serves  to  show  not  what  business  is 
done,  but  what  a  mass  of  business  there  is  undone,  and 
which  the  court  is  incompetent  to  dismiss.  What  a  fright- 
ful picture  has  he  given  of  the  judicature  of  his  own 
state.  How  alarming  must  it  be  to  foreigners,  and  the 
citizens  of  other  states,  who  may  have  causes  depending 
in  Virginia.  What  chance  can  a  citizen  of  South  Caro- 
lina, Massachusetts,  or  elsewhere,  have  of  obtaining  jus- 
tice before  the  lapse  of  many  years,  if  the  history  given 
by  the  gentleman  of  Virginia  be  correct.  Should  a  citizen 
of  another  state  be  a  suitor  in  Virginia,  it  is  competent 
to  the  citizen  of  that  state  to  carry  the  cause  into  the  court 
of  chancery,  where  a  mass  of  business  presents  itself  to 
his  view,  and  he  finds  2600  causes  must  be  dismissed 
before  his  can  be  heard.  Where  would  the  citizens  of 
other  states,  having  debts  in  Virginia,  attempt  their  re- 
covery? They  would  seek  justice,  sir,  in  the  federal  cir- 
cuit court,  which  gentlemen  are  now  endeavouring  to  an- 
nihilate, and  not  in  the  state  court,  which  may  be  more 
properly  called  a  bed  of  justice  than  a  court  of  justice,  if 


the  Judiciary  Establishment.  107 

justice  sleeps  there  as  the  gentleman  has  represented.  He 
also  states,  that  state  justice  is  cheaper  than  national  jus- 
tice. I  do  not  believe  this  a  correct  position.  I  am  very 
willing  to  enter  into  a  comparison,  but  must  exclude 
from  it  Virginia,  because  he  has  shown  that  justice  is 
denied  there,  it  being  greatly  delayed. 

Thursday,  February  25,  1802. 
In  the  course  of  the  observations  1  yesterday  offered,  I 
endeavoured  to  show  that  it  was  the  intention  of  the  con- 
vention to  make  our  judges  independent  of  both  execu- 
tive and  legislative  power — that  this  was  the  acknow- 
ledged understanding  of  all  the  political  writers  of  that 
time,  the  belief  of  the  state  conventions,  and  of  the  first 
congress  when  they  organized  our  judicial  system.  If  I 
have  been  successful  in  my  attempt  to  establish  this  po- 
sition, and  if  (what  I  suppose  cannot  be  denied)   it  be 
true  in  jurisprudence,   that   whenever  power  is  given 
specially  to  any  branch  of  government,  and  the  tenure 
by  which  it  is  to  be  exercised  be  specially  defined,  that 
no  other,  by  virtue  of  general  powers,  can  rightfully  in- 
trude into  the  trust — then,  I  presume,  it  must  follow  of 
consequence  that  the  present  intermeddling  of  congress 
with  the  judicial  department,  is  a  downright  usurpation, 
and  that  its  effect  will  be  the  concentration  of  all  power 
in  one  body,  which  is  the  true  definition  of  despotism. 
As,  sir,  every  thing  depends  upon  the  fair  construction 
which  this  article  in  the  constitution,  respecting  the  judi- 
ciary, is  susceptible  of,  I  must  again  read  it.   [Here  Mr. 
R.  read  several  clauses  of  the  constitution.]  Some  of  the 
clauses  we  see  are  directory,  and   others   prohibitory. 
Now,  sir,  I  beg  to  be  informed  of  what  avail  are  your 
prohibitory  clauses,  if  there  be  no  power  to  check  con- 
gress, and  the  president,  from  doing  what  the  constitution 
has  prohibited  them  from  doing?  Those  prohibitory  re- 


108  Mr.  Rutledge's  Speech  on 

gulations  were  designed  for  the  safety  of  the  state  govern- 
ments, and  the  liberties  of  the  people.  But  establish  what 
is  this  day  the  ministerial  doctrine,  and  your  prohibitory 
clauses  are  no  longer  barriers  against  the  ambition  or  the 
will  of  the  national  government;  it  becomes  supreme,  and 
is  without  control.  In  looking  over  these  prohibitory 
clauses  as  the  representative  of  South  Carolina,  my  eye 
turns  with  no  inconsiderable  degree  of  jealousy  and 
anxiety  to  the  9th  section  of  the  1st  article — which  de- 
clares, [Here  Mr.  R.  read  the  article  respecting  migration 
before  the  year  1808.] 

I  know  this  clause  was  meant  to  refer  to  the  importa- 
tion of  Africans  only,  but  there  are  gentlemen  who  insist 
that  it  has  a  general  reference,  and  was  designed  to  pro- 
hibit our  inhibiting  migration,  as  well  from  Europe  as 
any  where  else.  It  is  in  the  recollection  of  many  gentle- 
men, who  now  hear  me,  that  in  discussing  the  alien  bill, 
this  clause  in  the  constitution  was  shown  to  us,  and  we 
were  told  it  was  a  bar  to  the  measure;  and  an  honourable 
gentleman  from  Georgia,  then  a  member  of  this  house, 
and  now  a  senator  of  the  United  States  (and  who  had 
been  a  member  of  the  convention)  told  us  very  gravely, 
he  never  considered  this  prohibition  as  relating  to  the  im- 
portation of  slaves.  I  call  upon  gentlemen  from  the 
southern  states  to  look  well  to  this  business.  If  they  per- 
severe in  frittering  away  the  honest  meaning  of  the  consti- 
tution by  their  forced  implications,  this  clause  is  not  worth 
a  rush — is  a  mere  dead  letter;  and  yet,  without  having 
it  in  the  constitution,  I  know  the  members  from  South 
Carolina  would  never  have  signed  this  instrument,  nor 
would  the  convention  of  that  state  have  adopted  it.  My 
friend,  from  Delaware,  standing  on  this  vantage  ground, 
says  to  our  opponents,  here  I  throw  the  gauntlet,  and  de- 
mand of  you  how  you  will  extricate  yourselves  from  the 
dilemma  in  which  you  will  be  placed,  should  congress 


the  Judiciary  Establishment.  109 

pass  any  such  acts  as  are  prohibited  by  the  constitution. 
The  judges  are  sworn  to  obey  the  constitution,  which 
limits  the  powers  of  congress,  and  says  they  shall  not 
pass  a  bill  of  attainder,  or  ex  post  facto  law,  or  tax 
articles  exported  from  any  state:  and  it  has  other  prohi- 
bitory regulations.  Well,  sir,  suppose  congress  should 
pass  an  ex  post  facto  law,  or  legislate  upon  any  other  sub- 
ject which  is  prohibited  to  them,  where  are  the  people  of 
this  country  to  seek  redress?  Who  are  to  decide  between 
the  constitution  and  the  acts  of  congress?  Who  are  to 
pronounce  on  the  laws?  Who  will  declare  whether  they 
be  unconstitutional?  Gentlemen  have  not  answered  this 
pertinent  inquiry.  Sir,  they  cannot  answer  it  satisfactorily 
to  the  people  of  this  country. — It  is  a  source  of  much 
gratification  to  me  to  know,  that  my  sentiments  on  this 
subject,  as  they  relate  to  the  constitutionality  of  it,  arc  in 
unison  with  those  of  the  wisest  and  best  men  in  tlv-  k£ 
tive  state.  The  judicial  system  had  proved  so  inconvenient 
there,  as  to  render  a  new  organization  of  it  necessary 
some  years  past.  There  were  gentlemen  in  the  legislature 
as  anxious  to  send  from  the  bench  some  of  the  judges,  as 
gentlemen  here  are  to  dismiss  our  federal  judges;  personal 
animosities  existed  there  as  well  as  here,  though  not  to 
so  great  an  extent;  but  it  was  the  opinion  of  a  large  ma- 
jority of  the  South  Carolina  legislature,  that  as  the  con- 
stitution declares  "  the  judges  shall  hold  their  offices 
during  good  behaviour,"  the  office  could  not  be  taken 
from  them,  the  measure  was  abandoned,  and  the  wise 
and  cautious  course  pursued,  which  we  wish  gentlemen 
here  to  follow;  the  system  was  not  abolished,  but  modi- 
fied and  extended;  the  judges  had  new  duties  assigned 
to  them,  and  their  number  was  increased,  but  no  judge 
was  deprived  of  his  office.  In  South  Carolina  they  have 
a  court  of  chancery,  consisting  of  three  chancellors,  and 
the  law  establishing  it  requires  the  presence  of  two  judges 


110  Mr.  Rutledge's  Speech  on 

to  hold  a  court.  During  a  recess  of  the  legislature  one  of 
the  chancellors  resigned,  and  another  died.  The  functions 
of  this  court  of  consequence  became  suspended.  All  the 
business  pending  in  it  was  put  to  sleep.  The  public 
prints  were  immediately  filled  with  projects  for  destroy- 
ing the  court  which  had  been  denounced  as  unnecessary. 
As  the  citizens  of  the  western  part  of  the  state  had  not 
participated  much  in  the  benefits  derived  from  the  court 
of  chancery,  many  of  the  most  influential  of  them  deemed 
it  of  little  utility.  The  opposition  assumed  so  formidable 
an  aspect,  as  to  determine  the  governor  (who  exercises 
the  power  of  appointing  judges  during  the  recess  of  the 
legislature)  not  to  make  any  appointment,  believing  the 
court  would  be  abolished.  When  the  legislature  met,  an 
effort  was  made  to  abolish  the  court;  but  a  large  majority, 
giving  to  the  constitution  the  honest  meaning  of  its  fra- 
mers,  considered  the  judges  as  having  a  life  estate  in  their 
offices,  provided  they  behaved  well;  and  the  vacancies  on 
the  chancery  bench  were  immediately  supplied. 

That  the  national  judicial  establishment  is  compara- 
tively more  costly  than  are  the  state  judiciaries,  is  far 
from  being  the  case,  I  believe.  It  may  be  so  in  Virginia, 
where  they  have  but  one  chancellor  with  little  salary  and 
'  much  business;  but  it  is  not  so  in  other  states.  In  South 
Carolina  we  have  six  judges  at  common  law,  at  six  hun- 
dred pounds  sterling  a  year  each;  three  chancellors  at  five 
hundred  pounds  each,  which,  together  with  the  salaries 
and  fees  of  office  of  the  attorney  general,  master  in  chan- 
cery, solicitors,  clerks  and  sheriffs,  amount  to  six  thousand 
two  hundred  pounds  sterling.  And  yet,  sir,  justice  I  be- 
lieve is  no  where  cheaper  than  in  South  Carolina.  By  the 
judicious  structure  of  her  judiciary  system,  the  streams  of 
justice  are  diffused  over  the  whole  state,  and  every  man 
is  completely  protected  in  his  life,  liberty,  property  and 
reputation.  The  courts  are  almost  constantly  in  session. 


the  Judiciary  Establishment.  Ill 

The  judges  are  gentlemen  of  high  talents,  integrity  and 
strict  impartiality;  and  every  one  who  goes  into  the  court 
of  that  state,  not  only  obtains  ample  justice,  but  obtains 
it  promptly — this,  sir,  is  what  I  call  cheap  justice.  The 
gentleman  from  Virginia  has  seen  fit  to  notice  the  law 
which  laid  a  direct  tax,  and  said  it  was  imposed  when  we 
knew  the  administration  of  this  government  was  soon  to 
pass  from  those  then  in  power;  and  was  resorted  to  as  a 
means  of  extending  executive  patronage,  and  to  make  pro- 
vision for  the  friends  of  an  expiring  executive.  Can  the 
honourable  gentleman  be  serious  in  all  this?  Does  he  re- 
member when  we  passed  this  law?  It  was  in  1798,  when, 
I  will  be  bold  to  say,  the  administration  enjoyed  the 
highest  degree  of  popular  favour.  In  no  popular  govern- 
ment, perhaps,  was  an  administration  more  popular  than, 
was  the  former  administration  at  the  time  this  tax  was  laid. 
Sir,  this  law  had  no  connexion  with  personal  or  party  con- 
siderations— Like  all  the  measures  of  the  past  adminis- 
tration, it  was  designed  to  promote  the  public  good.  Had 
we,  like  our  opponents,  consulted  the  caprices  and  pre- 
judices, and  not  the  real  interests  of  our  constituents;  had 
we  been  merely  attentive  to  popular  favour,  we  should 
not  have  passed  this  law:  at  the  crisis  it  was  passed  the 
public  good  demanded  it,  and  we  were  regardless  of  every 
other  consideration.  A  nation  that  had  lighted  up  the 
flame  of  war  in  every  corner  of  Europe,  that  was  prostra- 
ting the  liberties  of  every  free  people,  and  endeavouring 
to  subvert  the  government  of  every  country,  saw  fit  to 
menace  us; — told  us,  that  for  the  preservation  of  our  peace 
and  independence  we  must  pay  tribute.  This  degrading 
measure  was  scornfully  rejected  by  the  former  adminis- 
tration— They  said  if  we  must  fall,  we  will  fall  after  a 
struggle;  and  our  citizens  prepared  themselves  for  war 
with  alacrity,  and  regarded  every  sacrifice  as  inconsidera- 
ble compared  with  the  great  sacrifice  of  independence. 


112  Mr.  Rut  ledge's  Speech  on 

With  this  prospect  of  immediate  war,  we  should  have 
acted  not  only  unwisely  but  treacherously,  had  we  trusted 
for  public  income  to  the  revenue  derived  from  trade;  had 
our  trade  been  destroyed,  there  would  have  been  a  com- 
plete destitution  of  revenue,  and  to  place  the  means  of 
national  defence,  as  far  beyond  the  reach  of  contingency 
as  possible,  we  imposed  the  direct  tax.  We  knew  this  law 
would  prove  arms  and  ammunition  to  those  who  were  in- 
venting all  the  falsehood  credulity  could  swallow,  and 
who  were  busily  employed  in  misrepresenting  and  calum- 
niating the  conduct  of  the  government.  We  did  suppose 
they  might  make  this  law  their  artillery  to  batter  down  the 
administration — but  we  were  ,  not  deterred  from  our 
honest  purposes  by  this  expectation;  a  change  of  men 
when  compared  with  a  change  of  government,  weighed 
with  our  minds  as  dust  in  the  balance;  our  measures 
did  not  aim  at  popularity,  and  we  were  just  to  our  coun- 
try, regardless  of  any  party  consequences.  At  this  early 
period,  says  the  gentleman,  it  was  to  have  been  calculated 
what  would  be  the  result  of  the  presidential  election.  Sir, 
those  must  have  been  gifted  with  second  sight,  they  must 
have  been  prophets  indeed,  who  could  have  then  foretold 
how  the  election  would  issue;  the  result  was  as  doubtful 
as  any  event  could  be,  until  within  a  few  days  of  the  elec- 
tion. It  is  recollected  that  every  thing  depended  upon  the 
South  Carolina  vote;  all  the  gentlemen  in  nomination 
went  there  with  an  equal  number  of  votes;  the  anxiety 
displayed  at  the  time  by  the  gentlemen  here  from  Vir- 
ginia, proved  they  then  deemed  it  very  doubtful  how  the 
election  would  terminate.  Indeed,  sir,  nothing  could  have 
been  more  doubtful,  and  I  believe  it  is  fully  known  to 
the  ministerial  side  of  this  house,  that  it  depended  upon 
one  of  the  gentlemen  nominated,  who  had  not  the  Caro- 
lina votes,  to  have  obtained  them,  and  produced  to  the 
election  a  different  result — but  his  correct  mind  was  ob 


the  Judiciary  Establishment.  113 

noxious  to  any  intrigue;  it  would  not  descend  to  any 
compromise,  and  this  honourable  man  knew  that  no 
station  could  be  honourable  to  him  unless  honourably  ob- 
tained. In  the  very  wide  range,  which  the  gentleman  from 
Virginia  has  permitted  himself  to  take,  he  has  been 
pleased  to  notice  the  conduct  of  the  late  congress  when 
they  were  occupied  in  the  election  of  a  president  of  the 
United  States,  and  he  has  said  we  were  then  "  pushing 
forward  to  immolate  the  constitution  of  our  country." 
What  does  all  this  mean,  sir?  What,  sir!  Because  we,  of 
the  two  gentlemen  who  had  from  the  electors  an  equal 
number  of  votes,  did  not  prefer  him  who  was  from  Vir- 
ginia, are  we  to  be  charged  with  an  immolation  of  our 
constitution?  Sir,  the  gentleman  from  Virginia  was  not  a 
member  of  the  last  congress,  and  lest  he  should  not  know 
the  history  of  the  transaction,  to  which  he  alludes,  1  will 
give  it. 

The  electors  chosen  in  the  different  states  gave  the 
same  number  of  votes  for  Thomas  Jefferson  and  Aaron 
Burr;  there  being  a  tie,  it  devolved,  by  the  direction  of 
the  constitution,  upon  the  house  of  representatives  to 
make  an  election.  We  sincerely  believed  that  Mr.  Burr 
was  the  best  and  the  most  fit  man  to  be  president,  and  we 
accordingly  voted  for  him;  we  continued  to  vote  for  him 
six  and  thirty  times;  we  were  anxious  to  have  him  elected, 
and  we  deprecated  the  election  of  the  other  candidate;  but 
when  we  found  gentlemen  were  determined  not  to  have 
the  candidate  from  New- York,  and  said  they  would  have 
a  president  from  Virginia,  or  they  would  have  no  presi- 
dent at  all;  we,  who  venerated  our  constitution  too  sacred- 
ly to  do  any  thing  which  should  hazard  the  loss  of  it, 
yielded.  We  believed  Mr.  Jefferson  radically,  and  on 
principle,  hostile  to  the  national  constitution — we  believed 
some  of  the  most  important  features  in  it  obnoxious  to 
him — we  believed  him  desirous  of  destroying  the  inde- 

Vol.  II.  P 


114  Mr.  Rutledge's  Speech  on 

pcndence  of  our  judiciary — we  believed  him  opposed  to 
the  senate,  as  now  organized;  and  we  believed  him  desti- 
tute of  that  degree  of  energy,  necessary  to  maintain  the 
general  liberty  of  the  people  of  the  United  States.  With 
these  impressions  deep  upon  our  minds,  we  should  have 
been  traitors  to  our  country  had  we  voted  for  the  gentle- 
man from  Virginia,  as  long  as  there  was  any  prospect  left 
to  us  of  elevating  the  gentleman  from  New-York;  but 
when  we  found  the  object  of  our  preference  was  so  ob- 
noxious to  gentlemen  on  the  other  side,  that  they  would 
hazard  the  having  of  no  president,  rather  than  have  him, 
we  ceased  our  opposition.  And  this  is  what  the  honoura- 
ble gentleman  from  Virginia  has  been  pleased  to  call 
'  pushing  forward  to  immolate  the  constitution.'  I  regret, 
Mr.  Chairman,  being  compelled  to  mention  names,  and 
say  any  thing  of  a  personal  nature,  but  I  am  obliged  to 
do  it  in  pursuing  the  gentleman  from  Virginia,  who  in 
his  extraordinary  course,  has  not  only  mentioned  the 
names  of  gentlemen,  but  ascribed  unworthy  motives  for 
their  conduct.  He  has  said  Mr.  Read  and  Mr.  Greene 
voted  for  the  law  under  which  they  got  appointments. 
x\lthough  I  have  abundant  proof  that  neither  of  these  gen- 
tlemen solicited  their  offices,  that  they  were  given  spon- 
taneously, and  without  being  expected,  yet  I  will  merely 
answer  this  observation,  by  mentioning  what  is  generally 
known  to  all  gentlemen,  who  have  been  of  late  in  the 
councils  of  the  nation — it  is,  that  it  was  the  invariable 
practice  of  the  former  executive,  to  appoint  gentlemen  to 
office  without  previously  advising  with  them.  It  is  well 
known,  that  under  the  law,  gentlemen  are  now  endeavour- 
ing to  repeal,  Mr.  Jay  was  appointed  chief  justice,  and 
about  the  same  time,  several  gentlemen  in  this  house 
were  appointed  to  some  of  the  most  honourable  stations 
under  our  government — the  executive's  intention,  it  is 
well  known,  had  not  been  previously  notified  to  them — it 


the  Judiciary  Establishment.  115 

is  known  they  all  declined  accepting  the  places  proffered 
to  them.  Permit  me,  sir,  to  give  a  brief  history  of  the 
case  of  Mr.  Greene,  on  which  the  gentleman  from  Vir- 
ginia has  dwelt  so  much. 

The  district  judge  in  Rhode  Island  was  appointed  cir- 
cuit judge,  and  Mr.  Greene  was  appointed  district  judge. 
On  the  fourth  day  of  March,  Mr.  Greene  took  his  seat  in 
the  senate;  the  friends  of  the  administration  objected  to 
his  keeping  it;  they  said  he  was  a  judge,  as  appeared  by 
the  journals  of  the  senate — they  here  made  a  complete  re- 
cognition of  his  appointment  as  judge,  and  he  vacated  his 
seat;  after  getting  home  he  received  his  commission,  in 
which  the  blanks  had  been  filled  with  the  words  circuit 
judge,  instead  of  district  judge.  Mr.  Greene  enclosed  his 
commission  to  the  executive,  in  a  letter  most  profoundly 
respectful,  and  requested  the  errors  of  the  clerk,  in  the 
department  of  state,  might  be  corrected,  and  his  commis- 
sion made  to  conform  to  the  appointment,  as  recorded  on 
the  senatorial  journal.  To  this  letter,  which  was  in  highly 
respectful  terms,  the  president  would  not  deign  to  have 
any  answer  given;  he  pocketed  Mr.  Greene's  commission 
and  placed  another  gentleman  in  his  office — this  is  a  his- 
tory of  the  appointment  of  Mr.  Greene,  of  the  mistake 
made  by  the  clerk  who  filled  up  his  commission,  and  of 
the  manner  in  which  the  president  "  corrected  the  proce- 
dure." To  my  friend  from  New- York,  (Mr.  Morris)  who 
some  days  past  adverted  to  the  president's  system  of  per- 
secution, the  honourable  gentleman  from  Virginia  says  he 
is  so  ignorant  of  the  existence  of  any  such  system,  that 
he  cannot  conceive  what  is  alluded  to;  and  my  friend  from 
North  Carolina  (Mr.  Henderson)  who  spoke  of  the  de- 
structive spirit  which  had  mounted  in  the  whirlwind,  and 
now  directs  the  storm  against  one  half  of  the  community, 
he  charges  with  having  winged  his  flight  into  the  regions 
of  fancy;  and  tells  us  the  spirit  he  sees  is  a  mere  spirit. 


116  Mr.  Rutledge's  Speech  on 

thin  as  air,  and  without  real  form  or  substance.  Sir,  my 
honourable  friend  from  North  Carolina  is  under  no  ma- 
gical delusion;  the  spirit  he  noticed  is  a  gigantic  spirit, 
and  with  a  giant's  size  unites  a  giant's  appetite;  it  attacks 
the  independence  of  mind,  and  violates  the  right  of 
opinion;  it  establishes  a  mental  tyranny,  tampers  with  in- 
tegrity, and  poisons  morals;  it  has  arranged  one  half  of  the 
community  against  the  other;  it  denounces  as  a  "  sect" 
in  our  country,  all  those  whom  the  illustrious  Washing- 
ton took  to  his  confidence,  and  invested  with  his  favour. 
It  establishes  boards  of  inquisition,  to  know  how  men, 
who  are  in  office,  voted  at  the  last  election,  and  if  they  did 
not  then  subserve  the  views  of  the  ruling  party,  they  are 
stript  of  their  offices.  Many  of  the  proscribed  are  veterans 
of  seventy-six;  they  wasted  their  youth  and  their  sub- 
stance in  fighting  our  revolutionary  battles,  and  as  a  small 
reward  for  great  services,  they  had  offices  given  to  them 
by  the  distinguished  Washington.  Most  of  those  who  had 
been  appointed  by  him,  this  destroying  spirit  has  turned 
adrift,  and  to  those  who  are  not  yet  destroyed  it  gives  (in 
the  New-Haven  reply)  the  promise  of  Polyphemus  to 
Ulysses,  and  says,  "you  shall  be  devoured  last."  This 
is  the  spirit,  sir,  against  which  my  friend  from  North 
Carolina  has  raised  his  voice,  and  if  the  honourable  gen- 
tleman from  Virginia  will  appeal  to  the  wives  and  chil- 
dren of  ninety  or  a  hundred  meritorious  men,  who  have 
been  hurled  from  office,  to  make  way  for  those  who  are 
willing  without  examination,  to  yield  a  blind  support  to 
ministerial  measures;  to  sing  hosannas  to  the  president, 
and  bend  to  his  will  as  the  osier  does  to  the  breeze;  I  say, 
sir,  if  he  will  appeal  to  the  wives  and  children  of  those 
gentlemen,  who  have  been  degraded,  disgraced,  and  re- 
duced to  want,  as  far  as  it  was  in  the  power  of  the  exe- 
cutive to  degrade  and  reduce  them,  they  will  tell  him  this 
is  a  spirit  of  substance,  and  not  thin  as  air.  Fatigued  by 


the  Judiciary  Establishment.  117 

its  labours  we  now  see  this  great  spirit  resting  on  its  club; 
it  no  longer  dispatches  its  victims  as  heretofore,  by 
batches;  but,  as  strength  and  appetite  return,  proscriptions 
are  continued,  though  in  detail.  Since  the  meeting  of 
congress  there  have  been  many  dismissals;  in  the  last  week 
only,  I  heard  of  thi<t  of  a  meritorious  officer,  who  is  an 
aged  and  war  worn  soldier.  To  this  gentleman,  who  had 
grown  gray  in  the  service  of  his  countr , ,  general  Wash- 
ington gave  an  office,  which  might  cheer  the  evening  of 
his  days;  the  duties  of  it  were  discharged  with  industry 
and  fidelity.  He  has  been  a  useful  citizen;  he  has  thirteen 
children,  and  most  of  them  are  daughters,  the  eldest  has 
scarcely  numbered  eighteen  years,  and  the  youngest  not 
more  than  eight  months.  This  gentleman  has  been  placed 
on  the  proscribed  list;  not,  sir,  because  he  had  been  negli- 
gent of  any  of  his  duties,  but  because  some  of  those 
hands,  which  (as  it  has  been  modestly  said)  burst  open 
the  doors  of  honour  and  confidence,  were  widely  stretched 
out  for  rewards;  to  give  them  loaves  and  fishes  they  have 
been  taken  from  the  support  of  this  numerous  and  lovely 
family.  Sir,  there  not  only  exists,  as  my  friend  from  North 
Carolina  tells  us,  a  great  and  destroying  spirit,  but  there 
are  also  subordinate  spirits  employed  in  this  goodly  work 
of  proscription;  the  master  spirit,  unable  to  take  a  view  of 
the  whole  ground,  has  its  under  spirits;  these  minor 
spirits,  within  the  spheres  of  their  respective  departments, 
are  singling  out  objects  of  executive  vengeance.  By  some 
of  the  papers,  which  lie  before  me  on  my  desk,  I  see  the 
post- master  general  is  busily  employed;  every  post-master 
and  every  little  deputy  post-master,  who  cannot  prove  his 
claims  to  executive  favour,  by  proofs  of  conformity  to  the 
orthodox  faith  of  the  day,  is  considered  as  a  heretic.  In 
the  persecution  by  the  post- master  general,  of  those  who 
are  not  devoted  to  the  party,  I  observe  something  truly 
ridiculous;  thinking,  I  suppose,  that  public  opinion  would 


118  Mr.  Rut  ledgers  Speech  on 

demand  some  justification  of  this  conduct,  he  undertakes 
to  assign  reasons  for  it.  I  observe,  in  the  paper  of  this 
morning,  the  post- master  general  has  removed  one  of  his 
deputies  at  Augusta,  in  Georgia,  and  makes  a  sort  of  apo- 
logy for  it.  He  tells  the  man  it  is  because  he  is  a  printer, 
and  the  occupations  are  incompatible.  This  gentleman 
writes  to  him  that  he  is  not  a  printer,  and  that  he  never 
was  concerned  directly  nor  indirectly  in  the  publishing  of 
a  paper.  It  seems  then  the  post-master  general  was  mis- 
taken, but  the  deputy  lost  his  office.  This  lesson  will  pre- 
vent future  explanations  probably   by  the  post-master 
general.  It  will  be  more  convenient  for  him  to  wrap  him- 
self up  in  executive  infallibility  and  insist  "  the  king  can 
do  no  wrong."  The  gentleman  from  Virginia  has  noticed 
the  sedition  act,  and  says,  the  present  executive  requires 
no  such  shield  for  protection;   that  he  wants  no  artificial 
means  of  defence;  yet  in  the  very  same  breath  we  hear  the 
gentleman  complaining  of  defamatory  scribblers,  and  of 
the  profligacy  of  our  presses.  It  does  not  become  the 
honourable  gentleman  to  complain  of  the  public  prints.  It 
is  well  recollected,  that  when  heretofore  we  endeavoured 
to  check  the  licentiousness  of  the  press,  he  and  his  friend 
insisted  that  its  licentiousness  and  liberty  were  so  closely 
allied,  that  should  we  attempt  to  touch  this  vein,  v/e  would 
run  the  hazard  of  giving  a  mortal  wound  to  the  great  arte- 
ries of  the  body  politic.  This  was  formerly  the  language 
of  gentlemen  who  are  now  it  seems  suffering  from  the 
effects  of  their  past  policy;  they  are  now  experiencing 
what  they  might  have  learned  from  a  good  old  book, 
"  that  who  soweth  the  wind  will  reap  the  whirlwind."  It 
did  not  become  them  (to  use   our  Saviour's  expression) 
"to  cast  the  first  stone."  I  shall  here,  sir,  close  my  ob- 
servations in  answer  to  those  offered  by  the  gentleman  of 
Virginia,  to  whom  I  have  had  occasion  to  refer  so  often; 
permit  me,  however,  before  taking  my  leave  of  him,  to 


the  Judiciary  Establishment.  119 

express  my  sorrow,  that  he  deemed  it  necessary  in  rang- 
ing the  wild  field  he  occupied,  to  visit  Mount  Vernon, 
and  attempt  to  disturb  the  ashes  of  our  political  father. — 
This  circumstance  was  not  required  to  prove  that  pre- 
eminence is  often  obnoxious;  "  and  why  must  Aristides 
be  called  more  just  than  others,"  was  asked  by  the  envi- 
ous Athenian  who  voted  for  his  banishment.  Another 
honourable  gentleman  from  Virginia  (Mr.  Thompson) 
asks  my  friend  from  North  Carolina,  why  he  now  mourns 
and  sighs  over  the  constitution,  which  he  last  year  assist- 
ed to  violate,  and  insists  upon  it  we  did  wound  the  con- 
stitution, in  putting  down  the  two  courts  of  Kentucky 
and  Tennessee.  Sir,  it  has  been  satisfactorily  shown  by 
my  learned  friend  from   Delaware,  that  the  offices  were 
not  in  those  two  instances  destroyed,  but  modified,  and 
that  we  did  not  take  their  offices  from  the  judges,  but 
merely   assigned   them  new  duties.  This,  however,  the 
gentleman  from  Virginia  calls  wounding  the  constitution, 
and  proceeds  to  say  you  did  destroy  two  courts,  and  we 
will  destroy  sixteen.  What,  sir,  will  he  tell  us  that  our 
hands  are  red  with  the  blood  of  the  constitution  to  justify 
his  embruing  his?  Because  he  thinks  we  then  violated 
the  constitution,  will  he  now  murder  it?  Sir,  it  was  by 
sounding  the  alarm  about  meditated  violations  of  the  con- 
stitution, and  by  gross  misrepresentations  of  our  inten- 
tions, and  reiterated  charges  of  not  respecting  the  con- 
stitution, that  public  opinion  was  vitiated,  the   public 
mind  misled,  and  the  administration  of  our  government 
placed  where  it  now  is.  But  almost  in  the  moment  of 
changing,  when  the  present  administration  is  in  its  gristle, 
it  assumes  the  attitude  of  a  gladiator,  attacks  the  judici- 
ary, violates  the  rights  of  the  judges,  and  says  to  us,  you 
set  us  the  example.  Sir,  had  we  set  them  the  example,  it 
was  a  bad  one,  and  it  does  not  become  them  to  follow  it; 
but  we  never  gave  any  such  examples,  we  always  reve- 


120  Mr.  Rutledge^s  Speech  on 

renced  the  judiciary  as  the  bulwark  of  the  constitution, 
and  considered  the  rights  of  the  judges  as  the  rights  of 
all  the  people  of  America.  It  is  said  by  the  gentleman  from 
Virginia,  that  our  devotion  to  the  judiciary  establishment 
makes  us  wince  at  any  attempt  to  strip  off  some  of  its 
superfluous  and  expensive  trappings,  and  that  we  will  not 
part  with  the  Corinthian  and  composit  pillars  which  have 
been  added  for  its  decoration. 

Sir,  the  judiciary  is  the  fabric  of  the  constitution,  not  a 
Corinthian  pillar,  not  any  ornament  added  by  congress;  it 
is,  sir,  the  grand  doric  column;  one  of  the  three  founda- 
tion pillars,  formed  not  by  congress,  but  by  the  people 
themselves;  it  binds  together  the  abutment,  it  is  laid  in 
the  foundations  of  the  fabric  of  our  government,  and  if 
you  demolish  it,  the  grand  arch  itself  will  totter,  and  the 
whole  will  be  endangered.  We  are  asked  by  the  gentle- 
man from  Virginia,  if  the  people  want  judges  to  protect 
them?  Yes,  sir,  in  popular  governments  constitutional 
checks  are  necessary  for  their  preservation;  the  people 
want  to  be  protected  against  themselves;  no  man  is  s© 
absurd  as  to  suppose  the  people  collectedly  will  consent 
to  the  prostration  of  their  liberties;  but  if  they  be  not 
shielded  by  some  constitutional  checks  they  will  suffer 
them  to  be  destroyed;  to  be  destroyed  by  demagogues, 
who  filch  the  confidence  of  the  people  by  pretending  to  be 
their  friends;  demagogues,  who  at  the  time  they  are 
soothing  and  cajoling  the  people  with  bland  and  captiva- 
ting speeches,  are  forging  chains  for  them;  demagogues 
who  carry  daggers  in  their  hearts,  and  seductive  smiles 
in  their  hypocritical  faces;  who  are  dooming  the  people  to 
despotism,  when  they  profess  to  be  exclusively  the  friends 
of  the  people;  against  such  designs  and  such  artifices  were 
our  constitutional  checks  made  to  preserve  the  people  of 
this  country. — Will  gentlemen  look  back  to  the  histories 
of  other  countries,  and  then  tell  us  the  people  here  have 


the  Judiciary  Establishment \  121 

nothing  to  apprehend  from  themselves?  Who,  sir,  proved 
fatal  to  the  liberties  of  Rome?  The  courtier  of  the  people; 
one  who  professed  to  be  "the  man  of  the  people,"  who 
had  willed  away  his  fortune  to  the  people,  and  had  ex- 
posed his  will  to  the  public  eye;  a  man  who,  when  a 
crown  was  proffered  to  him,  shrunk  from  the  offer,  and 
affectedly  said  it  did  not  come  from  the  people;  it  was 
Julius  Caesar  who  prostrated  the  liberties  of  Rome,  and 
yet  Caesar  professed  to  be  the  friend  of  Rome,  to  be  in 
fact  the  people.  Who  was  it  that  in  England  destroyed 
the  representative  government,  and  concentrated  all  its 
powers  in  his  own  hands?  One  who  styled  himself  the 
man  of  the  people,  who  was  plain,  nay  studiously  negli- 
gent in  his  dress;  disdaining  to  call  himself  Mister,  it  was 
plain  unassuming  Oliver — Oliver  Cromwell,  the  friend  of 
the  people;  the  protector  of  the  commonwealth.  The  gen- 
tleman from  Virginia  says  he  would  rather  live  under  a 
despot,  than  a  government  where  the  judges  are  as  inde- 
pendent as  we  wish  them  to  be.  Had  I  his  propensities,  I 
like  him,  would  fold  my  arms  and  look  with  indifference 
at  this  attack  upon  the  constitution.  It  has  been  my  for- 
tune, Mr.  Chairman,  to  have  visited  countries  governed 
by  despots;  warned  by  the  sufferings  of  the  people  I  have 
seen  there,  I  am  zealous  to  avoid  any  thing  which  may 
establish  a  despotism  here.  It  is  because  I  am  a  republi- 
can in  principle,  and  from  education,  and  because  I  love 
a  republican  form  of  government  and  none  other,  that  I 
wish  to  keep  our  constitution  unchanged.  Independent 
judges,  at  the  same  time  that  they  are  useful  to  the  peo- 
ple, are  harmless  to  them.  The  judges  cannot  impose 
taxes;  they  cannot  raise  armies;  they  cannot  equip  fleets; 
they  cannot  enter  into  foreign  alliances;  these  are  powers 
which  are  exercised  without  control  by  despots;  and  as 
the  gentleman  from  Virginia  does  not  hold  despots  in 
Vol.  II.  Q 


122  Mr.  Rutledge's  Speech  on 

abhorrence,  he  and  I  can  never  agree  in  our  opinions  on 
government. 

Whether  another  honourable  gentleman  from  Virginia 
(Mr.  Randolph)  has  derived  all  the  service  from  his  sling 
and  his  stone  he  had  expected,  or  whether  he  feels  ac- 
quitted of  his  promise,  and  now  thinks  himself  capable  of 
prostrating  the  Goliah  of  this  house,  armed  cap-a-pie, 
with  the  constitution  of  his  country,  I  cannot  conjecture; 
whether  he  has  discovered  the  skill,  and  the  prowess  of 
David,  or  whether  he  is  likened  to  him  only  by  the  wea- 
pons he  wars  vvith,  it  is  for  the  committee  to  judge — for 
myself,  I  must  say,  that  his  high  promises  had  excited 
expectations,  which  in  me  have  not  been  realized;  and 
when  the  gentleman  sat  down,  I  was  sorry  to  find  my  ob- 
jections to  the  bill  on  your  table  undiminished — I  say 
sorry,  for  I  can  lay  my  hand  upon  my  heart,  and  in  the 
fulness  of  sincerity  declare,  there  is  nothing  I  desire  more 
anxiously  than  to  be  convinced  by  gentlemen  that  this 
measure  is  not  unconstitutional.  It  is  not  competent  for 
us  to  decide  where  the  power  of  judging  shall  be  placed, 
as  is  supposed  by  the  gentleman  from  Virginia,  who  says 
the  only  question  is  where  this  power  shall  be  placed. 
Sir,  the  true  question  is  where  was  this  power  placed  by 
the  constitution?  and  the  honest  answer  must  be,  that  it 
was  obtained  to  the  judiciary  by  the  will  of  the  people — 
Their  power  is  paramount  to  that  of  the  legislature,  and 
revocable  only  by  the  authority  that  gave  it.  Ic  depreca- 
ting the  adoption  in  this  country  of  the  common  law  of 
England,  which  was  brought  to  it  by  our  ancestors,  and 
the  principles  of  which  are  the  fundamental  maxims  of 
our  liberties,  the  gentleman  from  Virginia  has  attempted 
to  show  the  inconveniences  resulting  from  its  uncertain 
rules,  and  has  noticed  the  case  of  Williams  which  occur- 
red in  Connecticut.  Sir,  I  am  surprised  that  a  grntleman 
so  correct,  as  he  generally  is,  should  have  fallen  into  the 


the  Judiciary  Establishment.  12S 

inaccuracy  he  has.  The  case  of  Williams  is  a  notorious 
one,  and  it  was  not  a  prosecution  at  common  law — the 
history  of  it  is,  that  when  general  Pinckney  was  at  Paris, 
he  learned  that  some  of  the  privateers  which  were  then 
cruising  against  the  American  commerce,  were  com- 
manded by  Americans — as  soon  as  this  information  reach- 
ed congress,  they  passed  a  law  to  prohibit  our  citizens 
from  going  into  the  service  of  any  of  the  belligerent 
powers.  Williams  continued  to  command  a  French  pri- 
vateer, and  he  had  captured  many  of  our- vessels;  he  was 
afterwards  brought  into  Connecticut,  and  there  tried  and 
punished;  not  under  the  common  law,  as  the  gentleman 
from  Virginia  supposed;  but  under  our  statute;  under  the 
law  we  passed  in  1798.  The  gentleman  has  asked  whether 
if  we  had  created  an  army  of  judges,  and  given  them 
monstrous  high  salaries,  it  would  not  be  right  to  repeal  the 
law;  that  if  the  power  exists  to  repeal  any  law  which 
might  have  passed  on  this  subject,  it  might  not  now  be 
used,  and  has  been  pleased  to  say  we  would  have  created 
more  judges,  and  given  them  higher  salaries,  if  we  had  not 
wanted  nerves,  and  tells  my  honourable  and  learned  friend 
from  Delaware,  that  we  were  restrained  by  the  same  fee- 
bleness of  nerve  which  induced  us  at  the  presidential 
election  to  put  blank  votes  into  the  ballot  box.  Sir,  my 
friend  from  Delaware  does  want  that  sort  of  nerve  that 
some  gentlemen  now  discover;  although  he  is  as  brave  as 
he  is  wise,  yet  in  living  without  fear  he  will  live  without 
reproach,  and  never  make  himself  liable  to  the  charge  of 
prostrating  the  constitution  of  his  country.  For  such  a 
work  it  is  true  he  has  no  nerve. 

The  observations  of  one  honourable  gentleman  from 
Virginia  (Mr.  Giles)  being  now  reiterated  by  another  re- 
specting the  course  of  conduct  we  pursued  at  the  presi- 
dential election,  shows  that  time  has  not  abated  the 
resentment  of  Virginia,  which  we  excited  by  our  not 


124  Mr.  Jiutkdge's  Speech  on 

voting  for  the  Virginian  candidate.  Permit  me  here  to 
declare,  sir,  that  in  reviewing  all  my  public  conduct,  I 
can  discover  no  one  act  of  which  I  am  more  satisfied  than 
my  having  put  a  blank  vote  into  the  ballot  box — much 
has  been  said  on  this  subject;  my  friend  from  Delaware 
and  myself  have  been  denounced  by  the  jacobins  of  the 
country;  at  their  civic  feasts  and  in  their  drunken  frolics 
we  have  been  noticed;  European  renegadoes,  who  have 
left  their  ears  on  the  whipping  posts  of  their  respective 
countries,  or  who  have  come  to  this  country  to  save  their 
ears,  have  endeavoured  to  hang  out  terrors  to  us  in  the 
public  prints;  nay,  sir,  circular  letters  have  been  diffused 
through  the  country,  charging  us  with  the  intention  of 
preventing  at  one  time  the  election  of  a  president,  and  at 
another  with  the  design  of  defeating  the  vote  of  the  elec- 
tors, and  making  a  president  by  law!  This  was  all  a 
calumny,  and  as  it  relates  to  the  South  Carolina  delega- 
tion, I  declare,  they  had  no  intention  of  defeating  the  pub- 
lic will;  they  never  heard  of  any  project  for  making  a 
president  by  law;  they  had  but  one  object  in  view,  which 
they  pursued,  steadily,  as  long  as  there  was  any  prospect 
of  attaining  it.  The  gentleman  from  Virginia,  and  the 
gentleman  from  New- York,  had  an  equal  number  of  votes; 
we  preferred  the  latter;  we  voted  for  him  more  than  thirty 
times,  but  when  we  found  that  our  opponents  would  not 
unite  with  us,  and  seemed  obstinately  determined  to 
hazard  the  loss  of  the  constitution  rather  than  join  us;  we 
ceased  to  vote;  we  told  them  we  cannot  vote  with  you, 
but  by  ceasing  to  vote,  by  using  blank  votes  we  will  give 
effect  to  your  votes;  we  will  not  choose,  but  we  will  suffer 
you  to  choose.  Surely,  Mr.  Chairman,  there  was  nothing 
in  all  this  which  had  any  aspect  towards  defeating  the 
public  will.  Why  I  did  not  prefer  the  gentleman  who 
ultimately  was  preferred  has  already  been  mentioned. — 
This  is  a  subject  on  which  I  did  not  expect  to  be  called 


the  Judiciary  Establishment.  125 

upon  to  explain;  but  the  gentlemen  from  Virginia  have 
called,  and  it  was  necessary  to  answer.  Permit  me  to 
state  also,  that  besides  the  objections  common  to  my 
friend  from  Delaware  and  myself,  there  was  a  strong  one 
which  1  felt  with  peculiar  force.  It  resulted  from  a  firm 
belief,  that  the  gentleman  in  question  held  opinions  re- 
specting a  certain  description  of  property  in  my  state, 
which  should  they  obtain  generally,  would  endanger  it, 
and  indeed  lessen  the  value  of  every  other.  Following  the 
example  set  by  his  colleague,  the  gentleman  from  Vir- 
ginia has  bestowed  much  censure  on  the  past  administra- 
tion, and  makes  it  a  serious  charge  against  them,  having 
appointed  under  this  law  a  gentleman  of  Maryland,  who, 
he  says,  was  not  with  us  formerly,  but  unfurled  his 
standard  in  the  service  of  his  king,  and  fought  against  his 
countrymen,  whom  he  then  deemed  rebels.  I  did  not  ex- 
pect, Mr.  Chairman,  to  hear  this  observation  from  one  of 
the  friends  of  the  executive.  Since  the  fourth  of  March 
last,  I  thought  philosophy  had  thrown  her  mantle  over  all 
that  had  passed  of  a  criminal  nature;  that  sins  were  to  be 
forgotten  and  forgiven,  and  to  prove  the  sincerity  of  this 
forgiving  spirit,  sinners  were  to  be  distinguished  by  ex- 
ecutive favours — one  would  have  thought  so  in  reviewing 
executive  conduct;  where  persons  had  been  imprisoned 
and  fined  under  our  laws,  they,  we  know,  were  released; 
where  fines  had  actually  been  paid,  the  officers  of  go- 
vernment had  been  ordered  to  return  them;  and  not  only 
tories  had  been  appointed  to  office,  but  rank  old  tories  who 
had  been  banished.  The  present  collector  of  Philadelphia, 
for  the  internal  revenue,  has  been  appointed  since  the 
fourth  of  March  last,  and  although  he  never,  like  the  gen- 
tleman  alluded  to,  shivered  lances  in  the  service  of  his 
king,  yet  he  was  actively  employed  in  the  more  safe  ser- 
vice of  giving  information  to  the  British  generals,  and 
marching  before  sir  William  Howe,  decorated  with  lau  • 


126  Mr.  Rutledge's  Speech  on 

rels,  he  conducted  him  into  the  metropolis  of  his  native 
state.  Sir,  there  are  many  instances  of  this  kind.  Have 
gentlemen  forgotten  the  young  Englishman,  who  was  so 
busily  employed  here  last  winter,  during  the  presidential 
election,  that  in  seeing  him  one  would  really  have  sup- 
posed him  not  only  a  member  of  this  house,  but  like  him 
of  Tennessee,  holding  an  entire  vote  at  his  command — 
this  youngster  was  sent  out  to  this  country,  by  some  mer- 
chants in  England,  to  collect  debts  due  to  them,  and  his 
father,  whose  tory  principles  carried  him  from  America 
early  in  the  revolution,  is  now  subsisting  on  a  royal  pen- 
sion; this  young  man  has  been  appointed  our  consul  at 
London,  and  the  former  consul,  a  native   and  staunch 
American,  whose  conduct  had  been  approved  by  our 
merchants  generally,   has  been    turned  out  to  create  a 
vacancy.  The  gentleman  from  Virginia  has  repeated  the 
observation  of  his  colleague,  that  the  people  are  capable 
of  taking  care  of  their  own  rights,  and  do  not  want  a  corps 
of  judges  to  protect  them;  sir,  human  nature  is  the  same 
every  where,  and  man  is  precisely  the  same  sort  of  being 
in  the  new  world  that  he  is  in  the  old.  The  citizens  of 
other  republics  were  as  wise  and  valiant,  and  far  more 
powerful  than  we  are.    The    gentleman  from   Virginia 
knows  full  well,  that  wherever  the  Roman  standard  was 
unfurled,  its  motto  "  Senatus  Populusque  Romania  pro- 
claimed to  a  conquered  world,  that  they  were  governed 
by  the  senate  and  the  people  of  Rome. — But  now,  sir, 
the  Roman  Lazaroni,  who  crouching  at  the  gates  of  his 
prince's  palace  begs  the  offals  of  his  kitchen,  would  never 
know  that  his  ancestors  had  been  free — nor  that  the  peo- 
ple had  counted  for  any  thing  in  Rome,  or  that  Rome  ever 
had  her  Senate,  did  he  not  read  of  them  on  the  broken 
friezes  and  broken  columns  of  the  ruined  temples,  whose 
fragments  now  lie  scattered  over  the  Roman  forum.  Sir, 
the    mournful    histories  of  the  republics  of  Rome  and 


the  Judiciary  Establishment.  127 

Greece,  are  not  the  only  beacons  which  warn  us  of  the 
dangers  of  instability  and  innovation.  All  Europe  was 
once  free.  But  where  now  is  the  diet  of  Sweden?  Where 
are  the  states  of  Holland  and  Portugal,  and  the  republics 
of  Switzerland  and  Italy?  The  people  of  those  countries 
were  once  free  and  happy,  but  their  governments,  for  the 
want  of  some  protecting  check,  some  inherent  principle 
to  defend  themselves,  have  all  been  subverted;  they  have 
all  travelled  the  same  road;  it  is  as  plain  as  a  turnpike;  it 
is  pointed  out  by  the  ruins  of  other  republics;  every  where 
the  same  causes  have  produced  the  same  effects.  The 
government  gets  into  the  hands  of  theorists,  and  they  make 
inroads  on  the  constitution,  perhaps  with  honest  views — 
but  these  innovations  are  precedents  to  sanction  subse- 
quent innovations  of  men  with  bad  views,  and  despotism 
succeeds  to  anarchy.  This  is  what  we  learn  from  every 
page  of  history;  let  us  profit  by  these  monitions;  let  us 
take  experience  as  our  guide.  We  all  have  one  common 
interest  in  this  constitution,  let  us  then  leave  it  untouched; 
if  you  touch,  others  will  ruin  it — what  has  happened  else- 
where will  happen  here — these  gentlemen  are  not  masons 
in  politics  and  government,  they  cannot  build  up  again; 
they  are  mere  sappers  and  miners,  and  if  they  pull  down 
this  mild  government,  those  who  come  after  them  will 
build  up  a  despotic  one.  If  you  will  not  reject  this  mea- 
sure, postpone  it  for  a  year;  the  people  want  no  change  of 
our  constitution;  give  them  but  time,  and  my  life  on  it 
they  will  say  so;  the  president  will  respect  public  opinion, 
give  time  for  its  expression,  and  the  president  will  sub- 
ordinate his  desire  to  destroy,  to  theirs  to  preserve.  Is 
there  no  ground  upon  which  gentlemen  will  meet  us  and 
compromise?  If  the  remnant  of  the  army  is  disliked,  we 
will  abolish  it;  if  a  further  reduction  of  our  little  navy  is 
desired,  we  will  reduce  it;  we  will  join  in  abolishing  the 
internal  revenues, — indeed,  indeed,  sir,  there  is  no  sacri- 


128  Mr.  Rutledge's  Speech  on 

fice  we  will  not  make  to  prevent  the  sacrifice  of  this  con- 
stitution Gentlemen  say,  the  constitution  will  live;  sir, 
it  may  last  our  time,  but  it  will  drag  out  a  miserable  ex- 
istence after  receiving  this  wound;  it  will  be  mortal; 
inflict  it  and  you  doom  it  to  ruin;  like  the  best  and  most 
lovely  part  of  God's  creation,  violate  and  you  destroy  it; 
as  has  been  observed  in  the  house  above,  by  a  countryman 
and  honourable  friend  of  mine,  that  it  will  be  with  this 
constitution  as  with  a  confined  fluid;  if  a  drop  of  it  escapes, 
the  leak  through  which  it  steals,  will  soon  become  a 
breach  by  which  the  whole  will  pass  away.  This  bill  is 
an  egg  which  will  produce  a  brood  of  mortal  conse- 
quences. Although  the  blow  aimed  at  the  constitution 
will  not  immediately  destroy,  the  injurious  effects  will  be 
immediately  felt;  it  will  soon  prostrate  public  confidence; 
it  will  immediately  depreciate  the  value  of  public  pro- 
perty. Who  will  buy  your  lands?  Who  will  open  your 
western  forests?  Who  will  build  upon  the  hills  and  culti- 
vate the  valleys  which  here  surround  us?  He  must  be  a 
speculator  indeed,  and  his  purse  must  overflow,  who 
would  buy  your  western  lands  and  city  lots,  if  there  be 
no  independent  tribunals,  where  the  validity  of  your  titles 
will  be  confirmed.  Have  gentlemen  forgot  the  sales  of 
public  lands  made  in  France — the  national  domain  was 
sold  for  assignats — after  they  had  been  well  sold,  and  one 
instalment  paid,  the  terms  of  payment  were  changed,  and 
the  purchasers  were  obliged  to  pay  in  specie,  or  relin- 
vjuish  the  lands.  Sir,  look  at  home,  and  we  see  examples 
to  prove  the  necessity  of  an  independent  judiciary.  Have 
we  not  seen  a  state  sell  its  western  lands,  and  afterwards 
declare  the  law  under  which  they  were  made  null  and  void. 
Their  nullifying  law  would  have  been  declared  void,  had 
they  had  an  independent  judiciary.  Whenever,  in  any 
country,  judges  are  dependent,  property  is  insecure.  An 
honourable  gentleman  from  Kentucky  says,  he  does  not 


the  Judiciary  Establishment.  129 

want  to  seek  examples  across  the  Atlantic.  Sir,  is  this 
wise — are  we  to  shut  our  eyes  to  the  light  of  history,  and 
turn  away  from  the  voice  of  experience.  Sir,  the  untu- 
tored Indian  marks  on  his  tomahawk  great  events  as  they 
pass,  and  augurs  what  will  happen  from  knowing  what 
has  happened;  and  shall  we  travel  on  without  noticing  the 
finger  boards  erected  by  historians  for  our  security?  The 
gentleman  censures  our  having  noticed  France,  and  read 
a  passage  from  a  speech  of  the  illustrious  Washington, 
where  he  called  the  French  a  great  and  wise  people. — 
What  has  been  the  fate  of  this  gallant  people?  Where  is 
their  constitution?  We  have  seen  La  Fayette  in  the  champ 
de  Mars  at  the  head  of  50,000  warriors,  who  with  one 
hand  grasping  their  swords,  and  the  other  laid  on  the 
altar,  swore,  in  the  presence  of  Almighty  God,  they  never 
would  desert  their  constitution.  Through  all  the  depart- 
ments of  France  similar  pledges  were  given.  Frenchmen 
received  their  constitution  as  the  followers  of  Mahomet 
did  their  Alcoran,  and  thought  it  came  to  them  from 
Heaven.  They  swore  on  their  standards,  and  their  sabres, 
never  to  abandon  it.  But,  sir,  this  constitution  has  va- 
nished; the  swords  which  were  to  have  formed  a  rampart 
around  it,  are  now  worn  by  the  consular  janissaries,  and 
the  republican  standards  are  among  the  trophies  which 
decorate  the  vaulted  roof  of  the  consul's  palace. 

Respecting  the  expediency  there  was  for  passing  the 
law,  which  gentlemen  now  seek  to  repeal,  I  shall  say 
nothing,  as  my  honourable  friend  from  Delaware  has  en- 
tered into  a  most  ample  detail  of  it.  Indeed,  sir,  he  travel- 
led through  so  extensive  a  field  of  enquiry  respecting  the 
unconstitutionality  of  the  repeal  as  well  as  of  the  expe- 
diency of  having  passed  the  law,  that  he  has  greatly  nar- 
rowed the  ground  for  all  who  follow  him;  his  range  was 
commensurate  with  the  extent  of  his  mighty  mind,  and 
with  the  magnitude  of  the  subject;  a  subject,  sir,  let  me 

Vol.  TI.  R 


130  Mr.  liutledge^s  Speech  on 

tell  gentlemen,  that  is  perhaps  as  awful  a  one  as  any  on 
this  side  of  the  grave.  This  attack  upon  our  constitution 
will  form  a  great  epoch  in  the  history  of  our  government. 
In  the  important  changes  we  read  of,  in  the  systems  of 
other  governments,  we  find  some  public  benefit  to  have 
been  intended;  something  plausible  at  least  was  offered 
in  justification.  But  here,  "  when  we  are  in  the  full  tide 
of  experimental  success,"  a  revolution  commences  with- 
out any  necessity  or  pretence.  It  is  not  to  be  presumed 
the  executive  has  been  incited  to  this  by  the  paltry  con- 
sideration of  saving  30,000  dollars.  He  has  proved,  by 
his  expenditures,  since  the  fourth  of  March,  that  our  na- 
tion is  not  in  great  want  of  money.  The  fact  is,  sir,  that 
so  good  was  the  management  by  the  past  administration 
of  our  fiscal  concerns,  that  our  treasury  overflows  with 
money;  to  this  cause  may  be  ascribed  some  of  the  great 
expenditures  made  during  the  recess,  and  which  to  me 
appear  to  have  been  perfectly  useless;  but  perhaps  they 
were  not  so.  Although  the  senate,  last  session,  appointed 
a  minister  to  France;  immediately  upon  its  rising,  the  ex- 
ecutive appointed  another  honourable  gentleman  (who 
now  sits  near  me)  envoy  to  carry  over  the  treaty;  although 
the  French  had  called  in  their  cruisers,  and  for  us  it  was 
a  time  of  profound  peace — this  gentleman  was  sent  over 
in  a  man  of  war,  at  an  enormous  expense.  If  gentlemen 
will  look  at  the  printed  report  of  the  secretary  of  the  navy, 
for  the  last  year,  of  money  necessary  to  be  appropriated, 
they  will  read  in  page  52,  that  the  expenses  of  the  ship 
Maryland  are  estimated  for  a  year  at  57,269  dollars  77 
cents.  The  Maryland  was  seven  months  in  carrying  our 
envoy,  waiting  his  orders,  and  returning  to  America;  and 
for  seven  months  the  expense  of  this  ship  would  be 
thirty -three  thousand  four  hundred  and  seven  dollars. 
Perhaps  all  this  was  wise  and  necessary  on  the  part  of  the 
executive.  I  barely  state  the  fact.  Another  which  I  will 


the  Judiciary  Establishment.  131 

notice  is,  that  without  waiting  for  the  final  ratification  of 
the  treaty,  or  for  congress  to  make  appropriations  for  its 
fulfilment,  the  executive  had  the  ship  Berceau  repaired  to 
be  delivered  up  to  the  French  government,  at  the  enor- 
mous cost  of  30,000  dollars.  Besides  this,  the  officers 
were  paid  when  at  Boston,  six  dollars  per  day.  How  does 
all  this  agree  with  assailing  the  most  precious  part  of  our 
constitution  to  save  a  little  money.  But  if  I  am  under  any 
delusion,  and  we  are  not  rich;  if  we  want  to  save  and 
must  save  money;  let  us  turn  to  something  else;  let  us 
begin  with  ourselves.  The  speaker  of  this  house  receives 
twelve  dollars  a  day,  give  him  six; — we  receive  six,  let 
us  be  content  with  three;  on  our  side  we  cheerfully  agree 
to  this  reduction.  If  gentlemen  will  look  at  the  catalogue 
of  expenses  under  the  head  of  "  Legislature"  they  will 
find  a  number  of  items  which  if  summed  up  will  amount 
to  193,470  dollars;  let  us  retrench  as  I  have  proposed, 
and  save  to  the  nation  one  half  of  this  sum;  we  will  in 
doing  so  save  nearly  100,000  dollars  a  year. 

Sir,  gentlemen  may  depend  upon  it  the  people  of  this 
country  are  too  intelligent  to  ascribe  this  measure  to  the 
mere  desire  of  saving  a  little  money;' they  will  view  it  as 
the  vengeance  of  an  irritated  majority.  I  conjure  gentle- 
men to  celebrate  their  victory  by  more  harmless  sports. 
Let  them  triumph  over  us,  but  not  by  immolating  the 
constitution;  let  them  beware,  that  in  erecting  a  triumphal 
arch  for  the  celebration  of  their  success,  they  do  not  dig 
a  grave,  and  decree  funeral  rites  for  our  constitution.  I 
repeat  again,  that  this  is  not  a  way  to  save  money.  If 
saving  really  be  the  object,  let  our  opponents  procure  it 
by  more  gentle  means.  To  attempt  saving  a  little  money, 
by  injuring  the  constitution,  would  be  like  taking  from 
the  foundation  to  patch  the  roof:  like  digging  up  for  use 
the  roots  of  a  tree,  instead  of  lopping  off  the  boughs.  To 
the   confidence   inspired   by   the   independency   of  our 


132  Mr.  Rutledge's  Speech,  &c. 

judges,  are  we  indebted  for  much  of  our  national  pros- 
perity. Pass  this  law  and  the  tribunals  of  America  will 
be  like  those  of  France,  as  described  by  the  most  bril- 
liant scholar  and  sagacious  statesman  of  this  age.  On  the 
subject  of  the  French  judges,  Mr.  Burke  has  said,  "  In 
them  it  will  be  in  vain  to  look  for  any  appearance  of  jus- 
tice towards  strangers;  towards  the  obnoxious  rich; 
towards  the  minority  of  routed  parties;  towards  all  those 
who  in  the  election  have  supported  unsuccessful  candi- 
dates. The  new  tribunals  will  be  governed  by  the  spirit 
of  faction." — I  feel  myself  much  honoured,  Mr.  Chair- 
man, by  the  great  attention  the  committee  have  given  to 
my  observations.  They  have,  I  fear,  exhausted  all  your 
stock  of  patience.  I  find  they  have  exhausted  all  my 
strength;  but  the  magnitude  of  the  subject  will,  I  trust, 
be  an  apology  for  their  length.  Permit  me  here  to  ex- 
press my  sorrow,  at  hearing  the  declaration  of  an  honour- 
able gentleman  from  Pennsylvania,  (Mr.  Gregg,)  who 
yesterday,  after  joining  in  the  call  for  the  question,  rose, 
and  said  it  was  useless  to  continue  the  debate,  as  the 
minds  of  the  majority  were  fully  made  up.  It  seems  then, 
gentlemen  are  not  open  to  conviction,  and  that  they  are 
determined  to  violate  the  sanctuary.  Myself,  and  my 
friends,  will  not,  however,  be  deterred  by  this  menace. 
We  have  always  been  the  sincere  friends  of  this  constitu- 
tion, and  we  will  attempt  its  defence  as  long  as  we  have 
the  means  of  making  it.  We  will  struggle  to  the  last;  if 
we  cannot  command  success,  we  will  endeavour  to  de- 
serve it; — and  should  the  friends  of  the  constitution  be 
subdued  by  numbers,  the  ministerial  phalanx,  in  bursting 
into  the  temple  will,  I  hope,  find  them  all  at  their  posts; 
they  will  be  seen  in  the  portico,  the  vestibule,  and  around 
the  altar,  grasping,  grappling  the  constitution  of  their 
country  with  the  holds  of  death,  and  with  nollumns  mutari 
on  their  lips. 


133 


SPEECH  OF  MR.  BAYARD. 

on  the  judiciary  establishment. 

Mr.  Chairman, 

I  MUST  be  allowed  to  express  my  surprise  at  the 
course  pursued  by  the  honourable  gentleman  from  Vir- 
ginia (Mr.  Giles)  in  the  remarks  which  he  has  made  on 
the  subject  before  us.  I  had  expected  that  he  would  have 
adopted  a  different  line  of  conduct.  I  had  expected  it  as 
well  from  that  sentiment  of  magnanimity  which  ought  to 
have  been  inspired  by  a  sense  of  the  high  ground  he 
holds  on  the  floor  of  this  house,  as  from  the  professions 
of  a  desire  to  conciliate,  which  he  has  so  repeatedly  made 
during  the  session. — We  have  been  invited  to  bury  the 
hatchet,  and  brighten  the  chain  of  peace.  We  were  dis- 
posed to  meet  on  middle  ground. — We  had  assurances 
from  the  gentleman,  that  he  would  abstain  from  reflec- 
tions on  the  past,  and  that  his  only  wish  was  that  we 
might  unite  in  future  in  promoting  the  welfare  of  our 
common  country. — We  confided  in  the  gentleman's  sin 
cerity,  and  cherished  the  hope,  that  if  the  divisions  of 
party  were  not  banished  from  the  house,  its  spirit  would 
be  rendered  less  intemperate.  Such  were  our  impres- 
sions, when  the  mask  was  suddenly  thrown  aside,  and  we 
saw  the  torch  of  discord  lighted  and  blazing  before  our 
eyes.  Every  effort  has  been  made  to  revive  the  animosi- 
ties of  the  house,  and  to  inflame  the  passions  of  the  na- 
tion.— I  am  at  no  loss  to  perceive  why  this  course  has 
been  pursued.  The  gentleman  .has  been  unwilling  to  rely 
upon  the  strength  of  his  subject,  and  has  therefore  deter- 
mined to  make  the  measure  a  party  question.  He  has  pro- 


134  Mr.  Bayard's  Speech  on 

bably  secured  success,  but  would  it  not  have  been  more 
honourable  and  more  commendable  to  have  left  the  deci- 
sion of  a  great  constitutional  question  to  the  understand- 
ing and  not  to  the  prejudices  of  the  house.  It  was  my 
ardent  wish  to  discuss  the  subject  with  calmness  and  de- 
liberation, and  I  did  intend  to  avoid  every  topic  which 
could  awaken  the  sensibility  of  party. — This  was  my 
temper  and  design  when  I  took  my  seat  yesterday.  It  is 
a  course  at  present  we  are  no  longer  at  liberty  to  pursue. 
The  gentleman  has  wandered  far,  very  far  from  the  points 
of  the  debate,  and  has  extended  his  animadversions  to  all 
the  prominent  measures  of  the  former  administrations. 
In  following  him  through  his  preliminary  observations,  I 
necessarily  lose  sight  of  the  bill  upon  your  table. 

The  gentleman  commenced  his  strictures  with  the  phi- 
losophic observation,  that  it  was  the  fate  of  mankind  to 
hold  different  opinions  as  to  the  form  of  government  which 
was  preferable.  That  some  were  attached  to  the  monar- 
chical, while  others  thought  the  republican  more  eligible. 
This,  as  an  abstract  remark,  is  certainly  true,  and  could 
have  furnished  no  ground  of  offence,  if  it  had  not  evident- 
ly appeared  that  an  allusion  was  designed  to  be  made  to 
the  parties  in  this  country.  Does  the  gentleman  suppose 
that  we  have  a  less  livety  recollection  than  himself  of  the 
oath  which  we  have  taken  to  support  the  constitution; 
that  we  are  less  sensible  of  the  spirit  of  our  government, 
or  less  devoted  to  the  wishes  of  our  constituents?  What- 
ever impression  it  might  be  the  intention  of  the  gentle- 
man to  make,  he  does  not  believe  that  there  exists  in  the 
country  an  anti-republican  party.  He  will  not  venture  to 
assert  such  an  opinion  on  the  floor  of  this  house.  That 
there  may  be  a  few  individuals  having  a  preference  for 
monarchy  is  not  improbable;  but  will  the  gentleman  from 
Virginia,  or  any  other  gentleman  affirm  in  his  place,  that 
there  is  a  party  in  the  country  who  wish  to  establish  mo- 


the  Judiciary  Establishment.  135 

i 
narchy?  Insinuations  of  this  sort  belong  not  to  the  legis- 
lature of  the  union.  Their  place  is  an  election  ground  or 
an  ale-house.  Within  these  walls  they  are  lost;  abroad, 
they  have  had  an  effect,  and  I  fear  are  still  capable  of 
abusing  popular  credulity. 

We  were  next  told  of  the  parties  which  have  existed, 
divided  by  the  opposite  views  of  promoting  executive 
power  and  guarding  the  rights  of  the  people.  The  gen- 
tleman did  not  tell  us  in  plain  language,  but  he  wished  it 
to  be  understood,  that  he  and  his  friends  were  the  guar- 
dians of  the  people's  rights,  and  that  we  were  the  advo- 
cates of  the  executive  power. 

I  know  that  this  is  the  distinction  of  party  which  some 
gentlemen  have  been  anxious  to  establish;  but  it  is  not  the 
ground  on  which  we  divide.  I  am  satisfied  with  the  con- 
stitutional powers  of  the  executive,  and  never  wished  nor 
attempted  to  increase  them;  and  I  do  not  believe  that  gen- 
tlemen on  the  other  side  of  the  house  ever  had  a  serious 
apprehension  of  danger  from  an  increase  of  executive  au- 
thority. No,  sir,  our  views  as  to  the  powers  which  do  and 
ought  to  belong  to  the  general  and  state  governments,  are 
the  true  source  of  our  divisions.  I  co-operate  with  the 
party  to  which  I  am  attached,  because  I  believe  their 
true  object  and  end  is  an  honest  and  efficient  support  of 
the  general  government,  in  the  exercise  of  the  legitimate 
powers  of  the  constitution. 

I  pray  to  God  I  may  be  mistaken  in  the  opinion  I  en- 
tertain as  to  the  designs  of  gentlemen  to  whom  I  am  op- 
posed. Those  designs  I  believe  hostile  to  the  powers  of 
this  government.  State  pride  extinguishes  a  national  sen- 
timent. Whatever  power  is  taken  from  this  government 
is  given  to  the  states. 

The  ruins  of  this  government  aggrandize  the  states. 
There  are  states  which  are  too  prond  to  be  controlled. 
Whose  sense  of  greatness  and  resource  renders  them  in- 


136  Mr.  Bayard's  Speech  on 

different  to  our  protection,  and  induces  a  belief,  that  if  no 
general  government  existed,  their  influence  would  be 
more  extensive  and  their  importance  more  conspicuous. 
There  are  gentlemen  who  make  no  secret  of  an  extreme 
point  of  depression,  to  which  the  government  is  to  be 
sunk.  To  that  point  we  are  rapidly  progressing.  But  I 
would  beg  gentlemen  to  remember,  that  human  affairs  are 
not  to  be  arrested  in  their  course,  at  artificial  points.  The 
impulse  now  given  may  be  accelerated  by  causes  at  pre- 
sent out  of  view;  and  when  those  who  now  design  well, 
wish  to  stop,  they  may  find  their  powers  unable  to  resist 
the  torrent.  It  is  not  true  that  we  ever  wished  to  give  a 
dangerous  strength  to  executive  power.  While  the  go- 
vernment was  in  our  hands,  it  was  our  duty  to  maintain 
its  constitutional  balance,  by  preserving  the  energies  of 
each  branch.  There  never  was  an  attempt  to  vary  the  re- 
lation of  its  powers.  The  struggle  was  to  maintain  the 
constitutional  powers  of  the  executive.  The  wild  princi- 
ples of  French  liberty  were  scattered  through  the  country. 
We  had  our  jacobins  and  disorganizes.  They  saw  no 
difference  between  a  king  and  a  president;  and  as  the  peo- 
ple of  France  had  put  down  their  king,  they  thought  the 
people  of  America  ought  to  put  down  their  president. 
They  who  considered  the  constitution  as  securing  all  the 
principles  of  rational  and  practical  liberty,  who  were  un- 
willing to  embark  upon  the  tempestuous  sea  of  revolution, 
in  pursuit  of  visionary  schemes,  were  denounced  as  mo- 
narchists. A  line  was  drawn  between  the  government  and 
the  people:  and  the  friends  of  the  government  were  mark- 
ed as  the  enemies  of  the  people.  I  hope,  however,  that  the 
government  and  the  people  are  now  the  same:  and  I  pray 
to  God  that  what  has  been  frequently  remarked,  may  not 
in  this  case  be  discovered  to  be  true,  that  they  who  have 
the  name  of  people  the  most  often  in  their  mouths,  have 
their  true  interest  the  most  seldom  at  their  hearts. 


the  Judiciary  Establishment.  137 

The  honourable  gentleman  from  Virginia  wandered  to 
the  very  confines  of  the  federal  administration,  in  search 
of  materials  the  most  inflammable  and  most  capable  of 
kindling  the  passions  of  his  party. 

He  represents  the  government  as  seizing  the  first  mo- 
ment which  presented  itself  to  create  a  dependent  monied 
interest,  ever  devoted  to  its  views.  What  are  we  to  under- 
stand by  this  remark  of  the  gentleman?  Does  he  mean  to 
say  that  congress  did  wrong  in  funding  the  public  debt? 
Does  he  mean  to  say  that  the  price  of  liberty  and  indepen- 
dence ought  not  to  have  been  paid?  Is  he  bold  enough  to 
denounce  this  measure  as  one  of  the  federal  victims  mark- 
ed for  destruction?  Is  it  the  design  to  tell  us  that  its  day 
has  not  yet  come,  but  is  approaching;  and  that  the  funding 
system  is  to  add  to  the  pile  of  federal  ruins?  Do  I  hear 
the  gentleman  say  we  will  reduce  the  army  to  a  shadow, 
we  will  give  the  navy  to  the  worms,  the  mint  which  pre- 
sented the  people  with  the  emblems  of  their  liberty  and 
of  their  sovereignty,  we  will  abolish — the  revenue  shall 
depend  upon  the  winds  and  waves,  the  judges  shall  be 
made  our  creatures,  and  the  great  work  shall  be  crowned 
and  consecrated  by  relieving  the  country  from  an  odious 
and  oppressive  public  debt. — These  steps,  I  presume,  are 
to  be  taken  in  progression. 

The  gentleman  will  pause  at  each  and  feel  the  public 
pulse.  As  the  fever  increases  he  will  proceed,  and  the 
moment  of  delirium  will .  be  seized  to  finish  the  great 
work  of  destruction. 

The  assumption  of  the  state  debts  has  been  made  an 
article  of  distinct  crimination.  It  has  been  ascribed  to  the 
worst  motives;  to  a  design  of  increasing  a  dependent 
monied  interest.  Is  it  not  well  known,  that  those  debts 
were  part  of  the  price  of  the  revolution?  That  they  rose 
in  the  exigency  of  our  affairs,  from  the  efforts  of  the  par- 
ticular states,  at  times  when  the  federal  arm  could  not  be 

Vol.  II.  S 


138  Mr.  Bayard's  Speech  on 

extended  to  their  relief?  Each  state  was  entitled  to  the 
protection  of  the  union,  the  defence  was  a  common 
burthen,  and  every  state  had  a  right  to  expect  that  the 
expenses  attending  its  individual  exertions  in  the  gene- 
ral cause,  would  be  reimbursed  from  the  public  purse. 
I  shall  be  permitted  further  to  add,  that  the  United 
States  having  absorbed  the  sources  of  state  revenue,  ex- 
cept direct  taxation,  which  was  required  for  the  support 
of  the  state  governments,  the  assumption  of  these  debts 
were  necessary  to  save  some  of  the  states  from  bank- 
ruptcy. 

The  internal  taxes  are  made  one  of  the  crimes  of  the 
federal  administration. — They  were  imposed,  says  the 
gentleman,  to  create  a  host  of  dependents  on  executive 
favour.  This  supposes  the  past  administrations  to  have 
been  not  only  very  wicked,  but  very  weak.  They  lay 
taxes  in  order  to  strengthen  their  influence.  Who  is  so 
ignorant  as  not  to  know  that  the  imposition  of  a  tax, 
would  create  an  hundred  enemies  for  one  friend.  The 
name  of  excise  was  odious;  the  details  of  collection  were 
unavoidably  offensive:  and  it  was  to  operate  upon  a  part 
the  community  least  disposed  to  support  public  burthens, 
and  most  ready  to  complain  of  their  weight.  A  little 
experience  will  give  the  gentleman  a  new  idea  of  the 
patronage  of  this  government.  He  will  find  it  not  that 
dangerous  weapon  in  the  hands  of  the  administration 
which  he  has  heretofore  supposed  it;  he  will  probably 
discover  that  the  poison  is  accompanied  by  its  antidote; 
and  that  an  appointment  of  the  government,  while  it 
gives  to  the  administration  one  lazy  friend,  will  raise  up 
against  it  ten  active  enemies. 

No!  The  motive  ascribed  for  the  imposition  of  the 
internal  taxes  is  as  unfounded,  as  it  is  uncharitable.  The 
federal  administration,  in  creating  burthens  to  support 
the  credit  of  the  nation,  and  to  supply  the  means  of  its 


the  Judiciary  Establishment.  139 

protection,  knew  that  they  risked  the  favour  of  those 
upon  whom  their  favour  depended.  They  were  willing 
to  be  the  victims  when  the  public  good  required. 

The  duties  on  imports  and  tonnage  furnished  a  preca- 
rious revenue;  a  revenue  at  all  times  exposed  to  defi- 
ciency from  causes  beyond  our  reach.  The  internal 
taxes  offered  a  fund  less  liable  to  be  impaired  by  acci- 
dent; a  fund  which  did  not  rob  the  mouth  of  labour,  but 
was  derived  from  the  gratification  of  luxury.  These 
taxes  are  an  equitable  distribution  of  the  public  burthens. 
Through  this  medium  the  western  country  is  enabled 
to  contribute  something  to  the  expenses  of  a  govern- 
ment, which  has  expended  and  daily  expends,  such  large 
sums  for  its  defence.  When  these  taxes  were  laid,  they 
were  indispensable.  With  the  aid  of  them,  it  has  been 
difficult  to  prevent  an  increase  of  the  public  debt.  And 
notwithstanding  the  fairy  prospects  which  now  dazzle 
our  eyes,  I  undertake  to  say,  if  you  abolish  them  this 
session,  you  will  be  obliged  to  restore  them  or  supply 
their  place  by  a  direct  tax,  before  the  end  of  two  years. 
Will  the  gentleman  say,  that  the  direct  tax  was  laid  in 
order  to  enlarge  the  bounds  of  patronage.  Will  he  deny 
that  this  was  a  measure  to  which  we  had  been  urged  for 
years  by  our  adversaries,  because  they  foresaw  in  it  the 
ruin  of  federal  power.  My  word  for  it,  no  administration 
will  ever  be  strengthened  by  a  patronage  united  with 
taxes,  which  the  people  are  sensible  of  paying. 

We  were  next  told,  that  to  get  an  army  an  Indian  war 
was  necessary.  The  remark  was  extremely  bold,  as  the 
honourable  gentleman  did  not  allege  a  single  reason  for 
the  position.  He  did  not  undertake  to  state,  that  it  was  a 
wanton  war,  or  provoked  by  the  government.  He  did 
not  even  venture  to  deny,  that  it  was  a  war  of  defence, 
and  entered  into  in  order  to  protect  our  brethren  on  the 
frontiers  from  the  bloody  scalping  knife,  and  murderous 


140  Mr.  Bayard1  s  Speech  on 

tomahawk  of  the  savage.  What  ought  the  government 
to  have  done?  Ought  they  to  have  estimated  the  value 
of  the  blood  which  probably  would  be  shed,  and  the 
amount  of  the  devastation  likely  to  be  committed,  before 
they  determined  on  resistance?  They  raised  an  army,  and 
after  great  expense  and  various  fortune,  they  have  secur- 
ed the  peace  and  safety  of  the  frontiers.  But,  why  was 
the  army  mentioned  on  this  occasion,  unless  to  forewarn 
us  of  the  fate  which  awaits  them,  and  to  tell  us,  that 
their  days  are  numbered?  I  cannot  suppose,  that  the 
gentleman  mentioned  this  little  army  distributed  on  a 
line  of  three  thousand  miles,  for  the  purpose  of  giving 
alarm  to  three  hundred  thousand  free  and  brave  yeoman- 
ry, ever  ready  to  defend  the  liberties  of  the  country. 

The  honourable  gentleman  proceeded  to  inform  the 
committee,  that  the  government,  availing  itself  of  the 
depredations  of  the  Algerines,  created  a  navy.  Did  the 
gentleman  mean  to  insinuate,  that  this  war  was  invited 
by  the  United  States?  Has  he  any  documents  of  proof 
to  render  the  suspicion  colourable?  No,  sir,  he  has  none. 
He  well  knows  that  the  Algerine  aggressions  were  ex- 
tremely embarrassing  to  the  government.  When  they 
commenced,  we  had  no  marine  force  to  oppose  them. 
We  had  no  harbours  or  places  of  shelter  in  the  Mediter- 
ranean. A  war  with  these  pirates  could  be  attended  with 
neither  honour  or  profit.  It  might  cost  a  great  deal  of 
blood,  and  in  the  end  it  might  be  feared  that  a  contest 
so  far  from  home,  subject  to  numberless  hazards  and 
difficulties,  could  not  be  maintained.  What  would  gen- 
tlemen have  had  the  government  to  do?  I  know  there 
are  those  who  are  ready  to  answer — abandon  the  Medi- 
terranean trade.  But  would  this  have  done?  The  corsairs 
threatened  to  pass  the  straits,  and  were  expected  in 
the  Atlantic.  Nay,  sir,  it  was  thought  that  our  very 
coasts  would  not  have  been  secure. 


the  Judiciary  Establishment.  141 

Will  gentlemen  go  farther,  and  say,  that  the  United 
States  ought  to  relinquish  her  commerce.  I  believe  this 
opinion  has  high  authority  to  support  it.  It  has  been 
said,  that  we  ought  to  be  only  cultivators  of  the  earth, 
and  make  the  nations  of  Europe  our  carriers. 

This  is  not  an  occasion  to  examine  the  solidity  of  this 
opinion;  but  I  will  only  ask,  admitting  the  administration 
were  disposed  to  turn  the  pursuits  of  the  people  of  this 
country  from  the  ocean  to  the  land,  whether  there  is  a 
power  in  the  government,  or  whether  there  would  be  if 
we  were  as  strong  as  the  government  of  Turkey,  or  even 
France,  to  accomplish  the  object?  With  a  sea  coast  of 
one  thousand  seven  hundred  miles,  with  innumerable 
harbours  and  inlets,  with  a  people  enterprising  beyond 
example,  is  it  possible  to  say,  you  will  have  no  ships 
or  sailors,  nor  merchants.  The  people  of  this  country 
will  never  consent  to  give  up  their  navigation,  and  every 
administration  will  find  themselves  constrained  to  pro- 
vide means  to  protect  their  commerce. 

In  respect  to  the  Algerines,  the  late  administration 
were  singularly  unfortunate.  They  were  obliged  to  fight 
or  pay  them.  The  true  policy  was  to  hold  a  purse  in  one 
hand,  and  a  sword  in  the  other.  This  was  the  policy  of 
the  government.  Every  commercial  nation  in  Europe 
was  tributary  to  these  petty  barbarians.  It  was  not  es- 
teemed disgraceful.  It  was  an  affair  of  calculation,  and 
the  administration  made  the  best  bargain  in  their  power, 
— They  have  heretofore  been  scandalized  for  paying  tri- 
bute to  a  pirate,  and  now  they  are  criminated,  for  pre- 
paring a  few  frigates  to  protect  our  citizens  from  slavery 
and  chains.  Sir,  I  believe  on  this  and  many  other  occa- 
sions, if  the  finger  of  heaven  had  pointed  out  a  course 
and  the  government  had  pursued  it,  yet,  that  they  would 
not  have  escaped  the  censure  and  reproaches  of  their 
enemies. 


142  Mr.  Bayard' 's  Speech  on 

We  were  told,  that  the  disturbances  in  Europe  were 
made  a  pretext  for  augmenting  the  army  and  navy.  I 
will  not,  Mr.  Chairman,  at  present  go  into  a  detailed 
view  of  the  events  which  compelled  the  government  to 
put  on  the  armour  of  defence,  and  to  resist  by  force  the 
French  aggressions.  All  the  world  know  the  efforts  which 
were  made  to  accomplish  an  amicable  adjustment  of  dif- 
ferences with  that  power.  It  is  enough  to  state,  that  am- 
bassadors of  peace  were  twice  repelled  from  the  shores 
of  France,  with  ignominy  and  contempt.  It  is  enough 
to  say,  that  it  was  not  till  after  we  had  drank  the  cup  of 
humiliation  to  the  dregs,  that  the  national*  spirit  was 
roused  to  a  manly  resolution,  to  depend  only  on  their 
God  and  their  own  courage  for  their  protection.  What 
sir,  did  it  grieve  the  gentleman,  that  we  did  not  crouch 
under  the  rod  of  the  mighty  nation,  and  like  the  petty 
powers  of  Europe,  tamely  surrender  our  independence? 
Would  he  have  had  the  people  of  the  United  States,  re- 
linquish without  a  struggle  those  liberties  which  had  cost 
so  much  blood  and  treasure?  We  had  not,  sir,  recourse 
to  arms,  until  the  mouths  of  our  rivers  Were  choaked 
with  French  corsairs.  Till  our  shores,  and  every  har- 
bour, were  insulted  and  violated.  Till  half  our  commer- 
cial capital  had  been  seized,  and  no  safety  existed  for 
the  remainder  but  the  protection  of  force.  At  this  mo- 
ment a  noble  enthusiasm  electrized  the  country — the 
national  pulse  beat  high,  and  we  were  prepared  to  sub- 
mit to  every  sacrifice,  determined  only,  that  our  inde- 
pendence should  be  the  last.  At  that  time  an  American 
was  a  proud  name  in  Europe;  but  I  fear,  much  I  fear, 
that  in  the  course  we  are  now  likely  to  pursue,  the  time 
will  soon  arrive,  when  our  citizens  abroad  will  be  asham- 
ed to  acknowledge  their  country. 

The  measures  of  1798,  grew  out  of  the  public  feel- 
ings. They  were  loudly  demanded  by  the  public  voice. 


the  Judiciary  Establishment.  143 

It  was  the  people  who  drove  the  government  to  arms, 
and  not  as  the  gentleman  expressed  it,  the  government 
which  punishes  the  people  to  the  X.  Y.  Z.  of  their  poli- 
cal  designs,  before  they  understood  the  A.  B.  C.  of  their 
political  principles. 

But  what,  sir,  did  the  gentleman  mean  by  his  X.  Y.  Z. 
I  must  look  for  something  very  significant,  something 
more  than  a  quaintness  of  expression,  or  a  play  upon 
words,  in  what  falls  from  a  gentleman  of  his  learning  and 
ability.  Did  he  mean  that  the  dispatches  which  contain- 
ed those  letters  were  impostures  designed  to  deceive  and 
mislead  the  people  of  America; — intended  to  rouse  a  false 
spirit  not  justified  by  events.  Though  the  gentleman  had 
no  respect  for  some  of  the  characters  of  that  embassy; 
though  he  felt  no  respect  for  the  chief  justice,  or  the  gen- 
tleman appointed  from  South  Carolina,  two  characters 
as  pure,  as  honourable  and  exalted,  as  any  country  can 
boast  of;  yet,  I  should  have  expected  that  he  would  have 
felt  some  tenderness  for  Mr.  Gerry,  to  whom  his  party- 
had  since  given  proofs  of  undiminished  confidence.  Does 
the  gentleman  believe  that  Mr.  Gerry  would  have  joined 
in  the  deception,  and  assisted  in  fabricating  a  tale  which 
was  to  blind  his  countrymen,  and  to  enable  the  govern- 
ment to  destroy  their  liberties?  Sir,  I  will  not  avail  my- 
self of  the  equivocations  or  confessions  of  Talleyrand 
himself;  I  say  these  gentlemen  will  not  dare  publicly  to 
deny  what  is  attested  by  the  hand  and  seal  of  Mr.  Gerry. 

The  truth  of  these  dispatches  admitted,  what  was 
your  government  to  do?  Give  us,  say  the  directory, 
1,200,000  livres  for  our  own  purse,  and  purchase  fifteen 
millions  of  dollars  of  Dutch  debt,  (which  was  worth 
nothing,)  and  we  will  receive  your  ministers  and  nego- 
tiate for  peace. 

It  was  only  left  to  the  government  to  choose  between 
an  unconditional  surrender  of  the  honour  and  indeDen- 


144  Mr.  JBayard's  Speech  on 

dence  of  the  country,  or  manly  resistance.  Can  you 
blame,  sir,  the  administration  for  a  line  of  conduct,  which 
has  reflected  on  the  nation  so  much  honour,  and  to  which 
under  God,  it  owes  its  present  prosperity. 

These  are  the  events  of  the  general  government,  which 
the  gentleman  has  reviewed  in  succession,  and  endea- 
voured to  render  odious  or  suspicious.  For  all  this  I 
could  have  forgotten  him,  but  there  is  one  thing  for 
which  I  will  not,  I  cannot  forgive  him.  I  mean  his  at- 
tempt  to  disturb  the  ashes  of  the  dead — Washington. 
Sir,  I  might  degrade  by  attempting  to  eulogize  this  illus- 
trious character.  The  work  is  infinite  beyond  my  pow- 
ers. I  will  only  say,  that  as  long  as  exalted  talents  and 
virtue  confer  honour  among  men,  the  name  of  Wash- 
ington will  be  held  in  veneration. 

After,  Mr.  Chairman,  the  honourable  member  had 
exhausted  one  quiver  of  arrows  against  the  late  execu- 
tive, he  opened  another  equally  poisoned,  against  the 
judiciary.  He  told  us,  sir,  that  when  the  power  of  the 
government  was  rapidly  passing  from  federal  hands,  after 
we  had  heard  the  thundering  voice  of  the  people  which 
dismissed  us  from  their  service,  we  erected  a  judiciary, 
which  we  expected  would  afford  us  the  shelter  of  an  in- 
violable sanctuary.  The  gentleman  is  deceived.  We  knew 
better,  sir,  the  characters  who  were  to  succeed  us,  and 
we  knew  that  nothing  was  sacred  in  the  eyes  of  infidels. 
No,  sir,  I  never  had  a  thought  that  any  thing  belonging 
to  the  federal  government  was  holy  in  the  eyes  of  these 
gentlemen.  I  could  never  therefore  imagine  that  a  sanc- 
tuary could  be  built  up,  which  would  not  be  violated.  I 
believe  these  gentlemen  regard  public  opinion  because 
their  power  depends  upon  it,  and  I  believe  they  respect 
no  existing  establishment  of  the  government,  and  if  pub- 
lic opinion  could  be  brought  to  support  them,  I  have  no 
doubt  they  would  annihilate  the  whole.  I  shall  at  present 


the  Judiciary  Establishment*  145 

only  say  further  on  this  head,  that  we  thought  the  re- 
organization of  the  judiciary  system  an  useful  measure, 
and  we  consider  it  as  a  duty  to  employ  the  remnant  of 
our  power  to  the  best  advantage  of  our  country. 

The  honourable  gentleman  expressed  his  joy  that  the 
constitution  had  at  last  become  sacred  in  our  eyes — that 
we  formerly  held,  that  it  meant  every  thing  or  nothing. 
I  believe,  sir,  that  the  constitution  formerly  appeared 
different  in  our  eyes  from  what  it  now  appears  in  the 
eyes  of  the  dominant  party.  We  formerly  saw  in  it  the 
principles  of  a  fair  and  goodly  creation.  We  looked  upon 
it  as  a  source  of  peace,  of  safety,  of  honour,  and  of  prospe- 
rity to  the  country.  But  now  the  view  is  changed;  it  is  the 
instrument  of  dark  and  wild  destruction.  It  is  a  weapon 
which  is  to  prostrate  every  establishment,  to  which  the 
nation  owes  the  unexampled  blessings  which  it  enjoys. 

The  present  state  of  the  country  is  an  unanswerable 
commentary  upon  the  construction  of  the  constitution.  It 
is  true  that  we  made  it  mean  much,  and  I  hope,  sir,  we 
shall  not  be  taught  by  the  present  administration  that  it 
can  mean  even  worse  than  nothing. 

The  gentleman  has  not  confined  his  animadversions  to 
the  individual  establishment,  but  has  gone  so  far  as  to 
make  the  judges  the  subject  of  personal  invective.  They 
have  been  charged  with  having  transgressed  the  bounds 
of  judicial  duty,  and  become  the  apostles  of  a  political 
sect.  We  have  heard  of  their  travelling  about  the  coun- 
try for  little  other  purpose  than  to  preach  the  federal 
doctrines  to  the  people. 

Sir,  I  think  a  judge  should  never  be  a  partizan.  No 
man  would  be  more  ready  to  condemn  a  judge  who  car- 
ried his  political  prejudices  or  antipathies  on  the  bench. 
But  I  have  still  to  learn  that  such  a  charge  can  be  sub- 
stantiated against  the  judges  of  the  United  States. 

The  constitution  is  the  supreme  law  of  the  land,  and 

Vol.  IT.  T 


146  Mr.  Bayard' 's  Speech  on 

they  have  taken  pains  in  their  charges  to  grand  juries  to 
unfold  and  explain  its  principles.  Upon  similar  occasions, 
they  have  enumerated  the  laws  which  compose  our  cri- 
minal code,  and  when  some  of  those  laws  have  been  de- 
nounced by  the  enemies  of  the  administration  as  uncon- 
stitutional, the  judges  may  have  felt  themselves  called 
upon  to  express  their  judgments  upon  that  point  and  the 
reasons  of  their  opinions. 

So  far,  but  no  farther,  I  believe  the  judges  have  gone; 
and  in  going  thus  far,  they  have  done  nothing  more  than 
faithfully  discharge  their  duty. 

But  if,  sir,  they  have  offended  against  the  constitution 
or  laws  of  the  country,  why  are  they  not  impeached? 
The  gentleman  now  holds  the  sword  of  justice,  the  judges 
are  not  a  privileged  order,  they  have  no  shelter  but  their 
innocence. 

But  in  any  view  are  the  sins  of  the  former  judges  to 
be  fastened  upon  the  new  judicial  system?  Would  you 
annihilate  a  system,  because  some  men  under  part  of  it 
had  acted  wrong.  The  constitution  has  pointed  out  a 
mode  of  punishing  and  removing  the  men,  and  does  not 
leave  this  miserable  pretext  for  the  wanton  exercise  of 
powers  which  is  now  contemplated. 

The  honourable  member  has  thought  himself  justified, 
in  making  a  charge  of  a  serious  and  frightful  nature 
against  the  judges.  They  have  been  represented,  going 
about  searching  out  victims  of  the  sedition  law.  But  no 
fact  has  been  stated — no  proof  has  been  adduced,  and 
the  gentleman  must  excuse  me  for  refusing  my  belief  to 
the  charge  till  it  is  sustained  by  stronger  and  better 
ground  than  assertion. 

If,  however,  Mr.  Chairman,  the  eyes  of  the  gentle- 
man are  delighted  with  victims,  if  objects  of  misery  are 
grateful  to  his  feelings,  let  me  turn  his  view  from  the 
walks  of  the  judges  to  the  track  of  the  present  executive. 


the  Judiciary  Establishment.  147 

It  is  in  this  path  we  see  the  real  victims  of  stern,  un- 
charitable, unrelenting  power.  It  is  here,  sir,  we  see  the 
soldier  who  fought  the  battles  of  the  revolution;  who 
spilt  his  blood  and  wasted  his  strength  to  establish  the 
independence  of  his  country,  deprived  of  the  reward  of 
his  services  and  left  to  pine  in  penury  and  wretchedness. 
It  is  along  this  path,  that  you  may  see  helpless  children 
crying  for  bread,  and  gray  hairs  sinking  in  sorrow  to  the 
grave.  It  is  here  that  no  innocence,  no  merit,  no  truth, 
no  services  can  save  the  unhappy  sectaries,  who  do 
not  believe  in  the  creed  of  those  in  power.  I  have  been 
forced  upon  this  subject,  and  before  I  leave  it,  allow  me 
to  remark,  that  without  inquiring  into  the  right  of  the 
president  to  make  vacancies  in  office,  during  the  recess 
in  the  senate,  but  admitting  the  power  to  exist,  yet  that 
it  never  was  given  by  the  constitution  to  enable  the  chief 
magistrate  to  punish  the  insults,  to  revenge  the  wrongs, 
or  to  indulge  the  antipathies  of  the  man.  If  the  discre- 
tion exists,  I  have  no  hesitation  in  saying,  that  it  is  abus- 
ed when  exercised  from  any  other  motive  than  the  public 
good.  And  when  I  see  the  will  of  a  president  precipi- 
tating from  office  men  of  probity,  knowledge,  and  talents, 
against  whom  the  community  has  no  complaint,  I  consi- 
der it  as  a  wanton  and  dangerous  abuse  of  power.  And 
where  I  see  men  who  have  been  the  victims  of  this  abuse 
of  power,  I  view  them  as  the  proper  objects  of  national 
sympathy  and  commiseration. 

Among  the  causes  of  impeachment  against  the  judges, 
is  their  attempt  to  force  the  sovereignties  of  the  states  to 
bow  before  them.  We  have  heard  them  called  an  ambi- 
tious body  politic;  and  the  fact  I  allude  to,  has  been  con- 
sidered as  full  proof  of  the  inordinate  ambition  of  the 
body. 

Allow  me  to  say,  sir,  the  gentleman  knows  too  much 
not  to  know  that  the  judges  are  not  a  body  politic.  He 


148  Mr.  Bayard's  Speech  on 

supposed  perhaps,  there  was  an  odium  attached  to  tht 
appellation,  which  it  might  serve  his  purposes  to  connect 
with  the  judges.  But,  sir,  how  do  you  derive  any  evi- 
dence of  the  ambition  of  the  judges,  from  their  decision 
that  the  states  under  our  federal  compact  were  compel- 
lable to  do  justice?  Can  it  be  shown  or  even  said,  that 
the  judgment  of  the  court  was  a  false  construction  of  the 
constitution?  The  policy  of  later  times  on  this  point  has 
altered  the  constitution,  and  in  my  opinion  has  oblitera- 
ted its  fairest  feature.  I  am  taught  by  my  principles  that 
no  power  ought  to  be  superior  to  justice.  It  is  not  that 
I  wish  to  see  the  states  humbled  in  dust  and  ashes;  it  is 
not  that  I  wish  to  see  the  pride  of  any  man  flattered  by 
their  degradation;  but  it  is  that  I  wish  to  see  the  great 
and  the  small,  the  sovereign  and  the  subject,  bow  at  the 
altar  of  justice,  and  submit  to  those  obligations  from 
which  the  deity  himself  is  not  exempt.  What  was  the 
effect  of  this  provision  in  the  constitution?  It  prevented 
the  states  being  the  judges  in  their  own  cause,  and  de- 
prived them  of  the  power  of  denying  justice.  Is  there  a 
principle  of  ethics  more  clear  than  that  a  man  ought  not 
to  be  a  judge  in  his  own  cause,  and  is  not  the  principle 
equally  strong  when  applied  not  to  one  man,  but  to  a 
collective  body.  It  was  the  happiness  of  our  situation, 
which  enabled  us  to  force  the  greatest  state  to  submit  to 
the  yoke  of  justice,  and  it  would  have  been  the  glory  of 
the  country  in  the  remotest  times,  if  the  principle  in  the 
constitution  had  been  maintained.  What  had  the  states 
to  dread?  Could  they  fear  injustice  when  opposed  to  a 
feeble  individual?  Has  a  great  man  reason  to  fear  from  a 
poor  one?  And  could  a  potent  state  be  alarmed  by  the 
unfounded  claim  of  a  single  person?  For  my  part  I  have 
always  thought  that  an  independent  tribunal,  ought  to  be 
provided  to  judge  on  the  claims  against  this  government. 
The  power  ought  not  to  be  in  our  own  hands.  We  are 


the  Judiciary  Establishment.  149 

not  impartial,  and  are  therefore  liable  without  our  know- 
ledge to  do  wrong.  I  never  could  see  why  the  whole 
community  should  not  be  bound  by  as  strong  an  obliga- 
tion to  do  justice  to  an  individual,  as  one  man  is  bound 
to  do  it  to  another. 

In  England,  the  subject  has  a  better  chance  for  justice 
against  the  sovereign,  than  in  this  country  a  citizen  has 
against  a  state.  The  crown  is  never  its  own  arbiter,  and 
they  who  sit  in  judgment,  have  no  interest  in  the  event 
of  their  decision. 

The  judges,  sir,  have  been  criminated  for  their  con- 
duct in  relation  to  the  sedition  act,  and  have  been  charg- 
ed with  searching  for  victims  who  were  sacrificed  under 
it.  The  charge  is  easily  made,  but  has  the  gentleman 
the  means  of  supporting  it?  It  was  the  evident  design  of 
the  gentleman  to  attach  the  odium  of  the  sedition  law  to 
the  judiciary;  on  this  score  the  judges  are  surely  inno- 
cent. They  did  not  pass  the  act;  the  legislature  made 
the  law,  and  they  were  obliged  by  their  oaths  to  execute 
it.  The  judges  decided  the  law  to  be  constitutional,  and 
I  am  not  now  going  to  agitate  the  question,  I  did  hope 
when  the  law  passed,  that  its  effect  would  be  useful.  It 
did  not  touch  the  freedom  of  speech,  and  was  designed 
only  to  restrain  the  enormous  abuses  of  the  press.  It 
went  no  farther  than  to  punish  malicious  falsehoods  pub- 
lished with  the  wicked  intention  of  destroying  the  go- 
vernment. No  innocent  man  ever  did  or  could  have  suf- 
fered under  the  law.  No  punishment  could  be  inflicted, 
till  a  jury  was  satisfied  that  the  publication  was  false,  and 
that  the  party  charged  knowing  it  to  be  false  had  pub- 
lished it  with  an  evil  design. 

The  misconduct  of  the  judges,  however,  on  this  sub- 
ject, has  been  considered  by  the  gentleman  the  more 
aggravated  by  an  attempt  to  extend  the  principle  of  the 
sedition  act,  by  an  adoption  of  those  of  the  common 


150  Mr.  Bayard1  s  Speech  on 

law.  Connected  with  this  subject,  such  an  attempt  was 
never  made  by  the  judges.  They  have  held  generally,  that 
the  constitution  of  the  United  States  was  predicated  upon 
an  existing  common  law.  Of  the  soundness  of  that  opinion, 
I  never  had  a  doubt.  I  should  scarcely  go  too  far,  were 
I  to  say,  that  stript  of  the  common  law,  there  would  be 
neither  constitution  nor  government.  The  constitution 
is  unintelligible  without  reference  to  the  common  law. 
And  were  we  to  go  into  our  courts  of  justice  with  the 
mere  statutes  of  the  United  States,  not  a  step  could  be 
taken,  not  even  a  contempt  could  be  punished.  Those 
statutes  prescribe  no  forms  of  pleadings,  they  contain  no 
principles  of  evidence,  they  furnish  no  rule  of  property. 
If  the  common  law  does  not  exist  in  most  cases,  there  is 
no  law,  but  the  will  of  the  judge. 

I  have  never  contended,  that  the  whole  of  the  common 
law  is  attached  to  the  constitution,  but  only  such  parts 
as  were  consonant  to  the  nature  and  spirit  of  our  govern- 
ment. We  have  nothing  to  do  with  the  law  of  the  eccle- 
siastical establishment,  nor  with  any  principle  of  mo- 
narchical tendency.  What  belongs  to  us,  and  what  is 
unsuitable,  is  a  question  for  the  sound  discretion  of  the 
judges.  The  principle  is  analogous  to  one  which  is  found 
in  the  writings  of  all  jurists,  and  commentators.  When 
a  colony  is  established,  it  is  established  subject  to  such 
parts  of  the  law  of  the  mother  country,  as  are  applicable 
to  its  situation.  When  our  forefathers  colonized  the 
wilderness  of  America,  they  brought  with  them  the  com- 
mon law  of  England.  They  claimed  it  as  their  birthright, 
and  they  left  it  as  the  most  valuable  inheritance  to  their 
children.  Let  me  say,  that  this  same  common  law,  now 
so  much  despised  and  vilified,  is  the  cradle  of  the  rights 
and  liberties  which  we  now  enjoy.  It  is  to  the  common 
law  we  owe  our  distinction  from  the  colonists  of  France, 
of  Portugal  and  Spain — how  long  is  it  since  we  have 


the  Judiciary  Establishment.  151 

discovered  the  malignant  qualities  which  are  now  ascrib- 
ed to  this  law?  Is  there  a  state  in  the  union  which  has 
not  adopted  it,  and  in  which  it  is  not  in  force?  Why  is 
it  refused  to  the  federal  constitution?  Upon  the  same 
principle,  that  every  power  is  denied  which  tends  to  in- 
vigorate the  government.  Without  this  law,  the  consti- 
tution becomes,  what  perhaps  many  gentlemen  wish  to 
see  it,  a  dead  letter. 

For  ten  years  it  has  been  the  doctrines  of  our  courts, 
that  the  common  law  was  in  force,  and  yet  can  gentle- 
men say,  that  there  has  been  a  victim  who  has  suffered 
under  it.  Many  have  experienced  its  protection,  none 
can  complain  of  its  oppression. 

In  order  to  demonstrate  the  aspiring  ambition  of  this 
body  politic,  the  judiciary,  the  honourable  gentleman 
stated  with  much  emphasis  and  feeling,  that  the  judges 
had  been  hardy  enough  to  send  their  mandate  into  the 
executive  cabinet.  Was  the  gentleman,  sir,  acquainted 
with  the  fact  when  he  made  this  statement.  It  differs 
essentially  from  what  I  know  I  have  heard  upon  the  sub- 
ject. I  shall  be  allowed  to  state  the  fact. 

Several  commissions  had  been  made  out  by  the  late 
administration,  for  justices  of  the  peace  of  this  territory. 
The  commissions  were  complete — they  were  signed  and 
sealed,  and  left  with  the  clerks  of  the  office  of  state,  to 
be  handed  to  the  persons  appointed.  The  new  adminis- 
tration found  them  on  the  clerk's  table,  and  thought  pro- 
per to  withhold  them.  These  officers  are  not  dependent 
on  the  will  of  the  president.  The  persons  named  in  the 
commissions,  considered  that  their  appointments  were 
complete,  and  that  the  detention  of  their  commissions 
was  a  wrong,  and  not  justified  by  the  legitimate  autho- 
rity of  the  executive.  They  applied  to  the  supreme 
court,  for  a  rule  upon  the  secretary  of  state,  to  show 
cause  why  a  mandamus  should  not  issue,  commanding 


152  Mr.  Bayard' *s  Speech  on 

him  to  deliver  up  the  commissions.  Let  me  ask,  sir, 
what  could  the  judges  do?  The  rule  to  show  cause  was 
a  matter  of  course  upon  a  law  point  in  the  least  doubtful. 
To  have  denied  it,  would  have  been  to  shut  the  doors  of 
justice  against  the  parties.  It  concludes  nothing,  neither 
the  jurisdiction  nor  the  regularity  of  the  act.  The  judges 
did  their  duty.  They  gave  an  honourable  proof  of  their 
independence.  They  listened  to  the  complaint  of  an  in- 
dividual against  your  president,  and  have  shown  them- 
selves disposed  to  grant  redress  against  the  greatest  man 
in  the  government;  if  a  wrong  has  been  committed,  and 
the  constitution  authorises  their  interference,  will  gentle- 
men say,  that  the  secretary  of  state,  or  even  the  presi- 
dent, is  not  subject  to  law?  And  if  they  violate  the  law, 
where  can  we  apply  for  redress  but  to  our  courts  of  jus- 
tice. But,  sir,  it  is  not  true,  that  the  judges  issued  their 
mandate  to  the  executive,  they  have  only  called  upon 
the  secretary  of  state  to  show  them,  that  what  he  has 
done  is  right.  It  is  but  an  incipient  proceeding  which 
decides  nothing. 

[Mr.  Giles  rose  to  explain.  He  said  that  the  gentle- 
man from  Delaware  had  ascribed  to  him  many  things 
which  he  did  not  say,  and  had  afterwards  undertaken  to 
refute  them.  He  had  only  said,  that  mandatory  process 
had  issued,  that  the  course  pursued  by  the  court  indica- 
ted a  belief  by  them,  that  they  had  jurisdiction,  and  that 
in  the  event  of  no  cause  being  shown  a  mandamus  would 
issue.] 

Mr.  Bayard.  I  stated  the  gentleman's  words  as  I  took 
them  down.  It  is  immaterial  whether  the  mistake  was  in 
the  gentleman's  expression,  or  in  my  understanding.  He 
has  a  right  to  explain,  and  I  will  take  his  position  as  he 
now  states  it.  I  deny,  sir,  that  mandatory  process  has 
issued.  Such  process  would  be  imperative,  and  suppose 
a  jurisdiction  to  exist;  the  proceeding,  which  has  taken 


the  Judiciary  Establishment.  153 

place,  is  no  more  than  notice  of  the  application  for  jus- 
tice made  to  the  court,  and  allows  the  party  to  show, 
either  that  no  wrong  has  been  committed,  or  that  the 
court  has  no  jurisdiction  over  the  subject.  Even,  sir,  if 
the  rule  were  made  absolute,  and  the  mandamus  issued, 
it  would  not  be  definitive,  but  it  would  be  competent  for 
the  secretary  in  a  return  to  the  writ,  to  justify  the  act 
which  has  been  done,  or  to  show  that  it  is  not  a  subject 
of  judicial  cognizance. 

It  is  not  till  after  an  insufficient  return  that  a  peremp- 
tory mandamus  issues.  In  this  transaction,  so  far  from 
seeing  any  thing  culpable  in  the  conduct  of  your  judges, 
I  think,  sir,  that  they  have  given  a  strong  proof  of  the 
value  of  that  constitutional  provision  which  makes  them 
independent.  They  are  not  terrified  by  the  frowns  of 
executive  power,  and  dare  to  judge  between  the  rights 
of  a  citizen  and  the  pretensions  of  a  president. 

I  believe,  Mr.  Chairman,  I  have  gone  through  most 
of  the  preliminary  remarks  which  the  honourable  gentle- 
man thought  proper  to  make,  before  he  proceeded  to  the 
consideration  of  those  points  which  properly  belong  to 
the  subject  before  the  committee.  I  have  not  supposed 
the  topics  I  have  been  discussing,  had  any  connection 
with  the  bill  on  your  table:  but  I  felt  it  as  a  duty  not  to 
leave  unanswered  charges  against  the  former  administra- 
tions and  our  judges,  of  the  most  insidious  tendency; 
which  I  know  to  be  unfounded,  and  which  were  calcu- 
lated and  designed  to  influence  the  decision  on  the  mea- 
sure now  proposed.  Why,  Mr.  Chairman,  has  the  pre- 
sent subject  been  combined  with  army,  the  navy,  the 
internal  taxes,  and  the  sedition  law?  Was  it  to  involve 
them  in  one  common  odium,  and  to  consign  them  to  a 
common  fate?  Do  I  see  in  the  preliminary  remarks  of 
the  honourable  member,  the  title  page  of  the  volume  of 
measures  which  are  to  be  pursued?  Are  gentleman  sen- 

Vol.  II.  U 


154  Mr.  Bayard's  Speech  on 

sible  of  the  extent  to  which  it  is  designed  to  lead  them? 
They  are  now  called  on  to  reduce  the  army,  to  diminish 
the  navy,  to  abolish  the  mint,  to  destroy  the  independence 
of  the  judiciary,  and  will  they  be  able  to  stop  when  they 
are  next  required  to  blot  out  the  public  debt,  that  hate- 
ful source  of  monied  interest  and  of  aristocratic  influ- 
ence? Be  assured,  sir,  we  see  but  a  small  part  of  the 
system  which  has  been  formed.  Gentlemen  know  the 
advantage  of  progressive  proceedings;  and  my  life  for  it, 
if  they  can  carry  the  people  with  them,  their  career  will 
not  be  arrested  while  a  trace  remains  of  what  was  done 
by  the  former  administrations. 

There  was  another  remark  of  the  honourable  member, 
which  I  must  be  allowed  to  notice.  The  pulpit,  sir,  has 
not  escaped  invective.  The  ministers  of  the  gospel  have 
been  represented,  like  the  judges,  forgetting  the  duties 
of  their  calling,  and  employed  in  disseminating  the  here- 
sies of  federalism.  Am  I  then,  sir,  to  understand  that  re- 
ligion is  also  denounced,  and  that  our  churches  are  to 
be  shut  up?  Are  we  to  be  deprived,  sir,  both  of  law  and 
gospel?  Where  do  the  principles  of  the  gentleman  end? 
When  the  system  of  reform  is  completed,  what  will  re- 
main? I  pray  God  that  this  flourishing  country,  which, 
under  his  providence,  has  attained  such  a  height  of  pros- 
perity, may  yet  escape  the  desolation  suffered  by  another 
nation,  by  the  practice  of  similar  doctrines. 

I  beg  pardon  of  the  committee  for  having  consumed 
so  much  time  upon  points  little  connected  with  the  sub- 
ject of  the  debate.  Till  I  heard  the  honourable  member 
from  Virginia  yesterday,  I  was  prepared  only  to  discuss 
the  merits  of  the  bill  upon  which  you  are  called  to  vote. 
His  preliminary  remarks  were  designed  to  have  an  effect 
which  I  deemed  it  material  to  endeavour  to  counteract, 
and  I  therefore  yielded  to  the  necessity  of  pursuing  the 
course  he  had  taken,  though  I  was  conscious  of  depart- 


the  Judiciary  Establishment.  155 

ing  very  far  from  the  subject  before  the  committee.  To 
the  discussion  of  the  subject  I  now  return  with  great  sa- 
tisfaction, and  shall  consider  it  under  the  two  views  it 
naturally  presents;  the  constitutionality  and  expediency 
of  the  measure.  I  find  it  most'  convenient  to  consider 
'first  the  question  of  expediency,  and  shall  therefore  beg 
permission  to  invert  the  natural  order  of  the  inquiry. 

To  show  the  inexpediency  of  the  present  bill,  I  shall 
endeavour  to  prove  the  expediency  of  the  judicial  law 
at  the  last  session.  In  doing  this,  it  will  be  necessary  to 
take  a  view  of  the  leading  features  of  the  pre-existing 
system,  to  inquire  into  its  defects,  and  to  examine  how 
far  the  evils  complained  of  were  remedied  by  the  provi- 
sions of  the  late  act.  It  is  not  my  intention  to  enter  into 
the  details  of  the  former  system;  it  can  be  necessary  only 
to  state  so  much  as  will  distinctly  show  its  defects. 

There  existed,  sir,  a  supreme  court,  having  original 
cognizance  in  a  few  cases,  but  principally  a  court  of  ap- 
pellate jurisdiction.  This  was  the  great  national  court  of 
dernier  resort.  Before  this  tribunal  questions  of  unlimit- 
ed magnitude  and  consequence,  both  of  a  civil  and  poli- 
tical nature,  received  their  final  decision;  and  I  may  be 
allowed  to  call  it  the  national  crucible  of  justice,  in  which 
the  judgments  of  inferior  courts  were  to  be  reduced  to 
their  elements  and  cleansed  from  every  impurity.  There 
was  a  circuit  court  composed,  in  each  district,  of  a  judge 
of  the  supreme  court  and  the  district  judge.  This  was 
the  chief  court  of  business  both  of  a  civil  and  criminal 
nature. 

In  each  district  a  court  was  established  for  affairs  of 
revenue  and  of  admiralty  and  maritime  jurisdiction.  It 
is  not  necessary  for  the  purposes  of  the  present  argu- 
ment to  give  a  more  extensive  outline  of  the  former  plan 
of  our  judiciary.  We  discover  that  the  judges  of  the 
supreme  court,  in  consequence  of  their  composing  a  part 


156  Mr,  Bayard }s  Speech  on 

of  the  circuit  courts,  were  obliged  to  travel  from  one 
extremity  to  the  other  of  this  extensive  country.  In  or- 
der to  be  in  the  court-house  two  months  in  fhe  year,  they 
were  forced  to  be  on  the  road  six.  The  supreme  court 
being  the  court  of  last  resort,  having  final  jurisdiction 
over  questions  of  incalculable  importance,  ought  cer- 
tainly to  be  filled  with  men  not  only  of  probity,  but  of 
great  talents,  learning,  patience  and  experience.  The 
union  of  these  qualities  is  rarely,  very  rarely  found  in 
men  who  have  not  passed  the  meridian  of  life.  My  lord 
Coke  tells  us,  that  no  man  is  fit  to  be  judge,  till  he  has 
numbered  the  lucubrations  of  twenty .  years.  Men  of 
studious  habits  are  seldom  men  of  strong  bodies.  In  the 
course  of  things  it  could  not  be  expected  that  men  fit  to 
be  judges  of  your  supreme  courts,  would  be  men  capa- 
ble of  traversing  the  mountains  and  wildernesses  of  this 
extensive  country.  It  was  an  essential  and  great  defect  in 
this  court  that  it  required  in  men  the  combination  of 
qualities,  which  it  is  a  phenomenon  to  find  united.  It 
required  that  they  should  possess  the  learning  and  expe- 
rience of  years  and  the  strength  and  activity  of  youth.  I 
may  say  further,  Mr.  Chairman,  that  this  court,  from  its 
constitution,  tended  to  deterioration  and  not  to  improve- 
ment. Your  judges,  instead  of  being  in  their  closets  and 
increasing  by  reflection  and  study  their  stock  of  wisdom 
and  knowledge,  had  not  even  the  means  of  repairing  the 
ordinary  waste  of  time.  Instead  of  becoming  more  learn- 
ed and  more  capable,  they  would  gradually  lose  the  fruits 
of  their  former  industry.  Let  me  ask  if  this  was  not  a 
vicious  construction  of  a  court  of  the  highest  authority 
and  greatest  importance  in  the  nation.  In  a  court  from 
which  no  one  had  an  appeal,  and  to  whom  it  belonged 
to  establish  the  leading  principles  of  national  jurispru- 
dence. 


the  Judiciary  Establishment.  157 

In  the  constitution  of  this  court,  as  a  court  of  last  re- 
sort, there  was  another  essential  defect.  The  appeals  to 
this  court  are  from  the  circuit  courts.  The  circuit  court 
consists  of  the  district  judge  and  a  judge  of  the  supreme 
court.  In  cases  where  the  district  judge  is  interested, 
where  he  has  been  counsel,  and  where  he  has  decided  in 
the  court  below,  the  judge  of  the  supreme  court  alone 
composes  the  circuit  court.  What  then  is  substantially 
the  nature  of  this  appellate  jurisdiction?  In  truth  and 
practice  the  appeal  is  from  a  member  of  a  court  to  the 
body  of  the  same  court.  The  circuit  courts  are  but 
emanations  of  the  supreme  court.  Cast  your  eyes  on  the 
supreme  court,  you  see  it  disappear,  and  its  members 
afterwards  arising  in  the  shape  of  circuit  judges.  Behold 
the  circuit  judges;  they  vanish  and  immediately  you  per- 
ceive the  form  of  the  supreme  court  appearing.  There  is, 
sir,  a  magic  in  this  arrangement  which  is  not  friendly  to 
justice.  When  the  supreme  court  assembles,  appeals 
come  from  the  various  circuits  of  the  United  States. 
There  are  appeals  from  the  decisions  of  each  judge.  The 
judgments  of  each  member  pass  in  succession  under  the 
revision  of  the  whole  body.  Will  not  a  judge  while  he 
is  examining  the  sentence  of  a  brother  to-day,  remember 
that  that  brother  will  sit  in  judgment  upon  his  proceed- 
ings to-morrow?  Are  the  members  of  a  court  thus  con- 
stituted, free  from  all  motive,  exempt  from  all  bias  which 
could  even  remotely  influence  opinion  on  the  point  of 
strict  right;  and  let  me  ask  emphatically,  whether  this 
court,  being  the  court  of  final  resort,  should  not  be  so 
constituted,  that  the  world  should  believe  and  every  suitor 
be  satisfied,  that  in  weighing  the  justice  of  a  cause,  no- 
thing entered  the  scales  but  its  true  merits. 

Your  supreme  court,  sir,  I  have  never  considered  as 
any  thing  more  than  the  judges  of  assize  sitting  in  bank. 
It  is  a  system  with  which  perhaps  I  should  find  no  fault, 


158  Mr.  Bayar&s  Speech  on 

if  the  judges  sitting  in  bank  did  not  exercise  a  final  juris- 
diction.  Political  institutions  should  be  so  calculated  as 
not  to  depend  upon  the  virtues,  but  to  guard  against  the 
vices  and  weaknesses  of  men.  It  is  possible  that  a  judge 
of  the  supreme  court,  would  not  be  influenced  by  the 
esprit  du  corps,  that  he  would  neither  be  gratified  by  the 
affirmance  nor  mortified  by  the  reversal  of  his  opinions; 
but  this,  sir,  is  estimating  the  strength  and  purity  of  hu- 
man nature  upon  a  possible,  but  not  on  its  ordinary  scale. 
I  believe,  Mr.  Chairman,  that  in  practice,  the  forma- 
tion of  the  supreme  court  frustrated  in  a  great  degree  the 
design  of  its  institution.  I  believe  that  many  suitors  were 
discouraged  from  seeking  a  revision  of  the  opinions  of 
the  circuit  court,  by  a  deep  impression  of  the  difficulties 
to  be  surmounted  in  obtaining  the  reversal  of  the  judg- 
ment of  a  court,  from  the  brethren  of  the  judge  who 
pronounced  the  judgment.  The  benefit  of  a  court  of  ap- 
peals well  constituted,  is  not  confined  to  the  mere  act  of 
reviewing  the  sentence  of  an  inferior  court,  but  is  more 
extensively  useful  by  the  general  operation  of  the  know- 
ledge of  its  existence  upon  inferior  courts.  The  power 
of  uncontrollable  decision  is  of  the  most  delicate  and  dan- 
gerous nature.  When  exercised  in  the  courts,  it  is  more 
formidable  than  by  any  other  branch  of  our  government. 
It  is  the  judiciary  only  which  can  reach  the  person,  the 
property,  or  life  of  an  individual.  The  exercise  of  their 
power  is  scattered  over  separate  cases,  and  creates  no 
common  cause.  The  great  safety  under  this  power  arises 
from  the  right  of  appeal.  A  sense  of  this  right  combines 
the  reputation  of  the  judge,  with  the  justice  of  the  cause. 
In  my  opinion  it  is  a  strong  proof  of  the  wisdom  of  a 
judicial  system,  when  few  causes  are  carried  into  the 
court  of  the  last  resort.  I  would  say,  if  it  were  not  para- 
doxical, that  the  very  existence  of  a  court  of  appeals 
ought  to  destroy  the  occasion  for  it.  The  conscience  of 


the  Judiciary  Establishment.  159 

the  judge,  sir,  will  no  doubt  be  a  great  check  upon  him 
in  the  unbounded  field  of  discretion  created  by  the  un- 
certainty of  law,  but  I  should  in  general  cases  rely  more 
upon  the  effect  produced  by  his  knowledge,  that  an  in- 
advertent or  designed  abuse  of  power  was  liable  to  be 
corrected  by  a  superior  tribunal.  A  court  of  appellate 
jurisdiction  organized  upon  sound  principles  should  ex- 
ist, though  few  cases  arose  for  their  decision;  for  it  is 
surely  better  to  have  a  court  and  no  causes,  than  to  have 
causes  and  no  court.  I  now  proceed,  sir,  to  consider  the 
defects  which  are  plainly  discernible,  or  which  have  been 
discovered  by  practice  in  the  constitution  of  the  circuit 
courts. 

These  courts,  from  information  which  I  have  received, 
I  apprehend  were  originally  constructed  upon  a  fallacious 
principle.  I  have  heard  it  stated,  that  the  design  of  plac- 
ing the  judges  of  the  supreme  court  in  the  circuit  courts, 
was  to  establish  uniform  rules  of  decision  throughout 
the  United  States.  It  was  supposed,  that  the  presiding 
judges  of  the  circuit  courts  proceeding  from  the  same 
body,  would  tend  to  identify  the  principles  and  rules  of 
decision  in  the  several  districts.  In  practice,  a  contrary 
effect  has  been  discovered  to  be  produced  by  the  pecu- 
liar organization  of  these  courts.  In  practice  we  have 
found  not  only  a  want  of  uniformity  of  rule  between  the 
different  districts,  but  no  uniformity  of  rule  in  the  same 
district.  No  doubt  there  was  an  uniformity  in  the  deci- 
sions of  the  same  judge,  but  as  the  same  judge  seldom 
sat  twice  successively  in  the  same  district,  and  some- 
times not  till  after  an  interval  of  two  or  three  years,  his 
opinions  were  forgotten  or  reversed  before  he  returned. 
The  judges  were  not  educated  in  the  same  school.  The 
practice  of  the  courts,  the  forms  of  proceeding  as  well 
as  the  rules  of  property,  are  extremely  various  in  the 
different  quarters  of  the  United  States.  The  lawyers  of 


160  Mr.  Bayard's  Speech  ok 

the  eastern,  the  middle,  and  southern  states,  are  s 
professors  of  the  same  science.  These  courts  were  in  a 
state  of  perpetual  fluctuation.  The  successive  terms  gave 
you  courts  in  the  same  district,  as  different  from  each 
other  as  those  of  Connecticut  and  Virginia.  No  system 
of  practice  could  grow  up,  no  certainty  of  rule  could  be 
established.  The  seeds  Sown  in  one  term,  scarcely  vege- 
tated before  they  were  trodden  under  foot.  The  condi- 
tion of  a  suitor  was  terrible — the  ground  was  always 
trembling  under  his  feet.  The  opinion  of  a  former  judge' 
was  no  precedent  to  his  successor.  Each  considered 
himself  bound  to  follow  the  light  of  his  own  understand- 
ing. To  exemplify  these  remarks,  I  will  take  the  liberty 
of  stating  a  case  which  came  under  my  own  observation. 
An  application  before  one  judge,  was  made  to  quash  an 
attachment  in  favour  of  a  subsequent  execution  creditor 
—the  application  was  resisted  upon  two  grounds,  and 
the  learned  judge,  to  whom  the  application  was  first 
made,  expressing  his  opinion  in  support  of  both  grounds, 
dismissed  the  motion.  At  the  succeeding  court  a  different 
judge  presided,  and  the  application  was  renewed  and 
answered  upon  the  same  grounds.  The  second  learned 
judge  was  of  opinion,  that  one  point  had  no  validity,  but 
he  considered  the  other  sustainable,  and  was  about  also 
to  dismiss'  the  motion,  but  upon  being  pressed  at  last 
consented  to  grant  a  rule  to  show  cause.  At  the  third 
term,  a  third  learned  judge  was  on  the  bench,  and  though 
the  case  was  argued  upon  its  former  principles,  he  was 
opinion,  that  both  answers  to  the  application  were  clearly 
insufficient,  and  accordingly  quashed  the  attachment. 
When  the  opinions  of  his  predecessors  were  cited,  he 
replied,  that  every  man  was  to  be  saved  by  his  own  faith. 
Upon  the  opinion  of  one  judge,  a  suitor  would  set  out 
in  a  long  course  of  proceedings  and  after  losing  much 
time  and  wasting  much  money,  he  would  be  met  by 


the  Judiciary  Establishment.  161 

another  judge,  who  would  tell  him  he  had  mistaken  his 
road,  that  he  must  return  to  the  place  from  which  he 
started,  and  pursue  a  different  track.  Thus  it  happened 
as  to  the  chancery  process  to  compel  the  appearance  of 
a  defendant.  Some  of  the  judges  considered  themselves 
bound  by  the  rules  in  the  English  books,  while  others 
conceived  that  a  power  belonged  to  the  court  upon  the 
service  of  a  subpoena  to  make  a  short  rule  for  the  defen- 
dant to  appear  and  answer,  or  that  the  bill  should  be 
taken  pro  confesso.  A  case  of  this  kind  occurred,  where 
much  embarrassment  was  experienced.  In  the  circuit 
court  for  the  district  of  Pennsylvania,  a  bill  in  chancery 
was  filed  against  a  person,  who  then  happened  to  be  in 
that  district,  but  whose  place  of  residence  was  in  the 
North  Western  Territory.  The  subpoena  was  served,  but 
there  was  no  answer  nor  appearance.  The  court  to  which 
the  writ  was  returned,  without  difficulty,  upon  an  appli- 
cation, granted  a  rule  for  the  party  to  appear  and  answer 
at  the  expiration  of  a  limited  time,  or  that  the  bill  be 
taken  pro  confesso.  A  personal  service  of  this  rule  being 
necessary,  the  complainant  was  obliged  to  hire  a  messen- 
ger to  travel  more  than  a  thousand  miles  to  serve  a  copy 
of  the  rule.  At  the  ensuing  court,  affidavit  was  made  of 
the  service  and  a  motion  to  make  the  rule  absolute.  The 
scene  immediately  changed,  a  new  judge  presided,  and 
it  was  no  longer  the  same  court. 

The  authority  was  called  for,  to  grant  such  a  rule; 
was  it  warranted  by  any  act  of  congress,  or  by  the  prac- 
tice of  the  state?  It  was  answered  there  is  no  act  of  con- 
gress, the  state  has  no  court  of  chancery.  But  this  pro- 
ceeding was  instituted  and  has  been  brought  to  its  pre- 
sent stage,  at  considerable  expense,  under  the  direction 
of  this  court.  The  judge  knew  of  no  power  the  court 
had  to  direct  the  proceeding,  and  he  did  not  consider 
that  the  complainant  could  have  a  decree  upon  his  bill 

Vol.  II.  X 


162  Mr.  Bayard'' s  Speech  on 

without  going  through  a  long  train  of  process  found  in 
the  books  of  chancery  practice.  The  complainant  took 
this  course,  and  at  a  future  time  was  told  by  another 
judge,  that  he  was  incurring  an  unnecessary  loss  of  time 
and  money,  and  that  a  common  rule  would  answer  his 
purpose.  I  ask  you,  Mr.  Chairman,  if  any  system  could 
be  devised  more  likely  to  produce  vexation  and  delay. 
Surely,  sir,  the  law  is  uncertain  enough  in  itself,  and  its 
paths'  sufficiently  intricate  and  tedious,  not  to  require 
that  your  suitors  should  be  burthened  with  additional 
embarrassments  by  the  organization  of  your  courts. 

The  circuit  is  the  principal  court  of  civil  and  criminal 
business;  the  defects  of  this  court  were  therefore  most 
generally  and  sensibly  felt.  The  high  characters  of  the 
judges  at  first  brought  suitors  into  the  courts;  but  the 
business  was  gradually  declining,  though  causes  belong- 
ing to  the  jurisdiction  of  the  courts  were  multiplying; 
the  continual  oscillation  of  the  court  baffled  all  conjec- 
ture as  to  the  correct  course  of  the  proceeding  or  the 
event  of  a  cause.  The  law  ceased  to  be  a  science.  To 
advise  your  client  it  was  less  important  to  be  skilled  in 
the  books,  than  to  be  acquainted  with  the  character  of 
the  judge  who  was  to  preside.  When  the  time  approach- 
ed, the  inquiry  was,  what  judge  are  we  to  have?  What 
is  his  character  as  a  lawyer?  Is  he  acquainted  with  chan- 
cery law?  Is  he  a  strict  common  lawyer,  or  a  special 
pleader? 

When  the  character  of  the  judge  was  ascertained,  gen- 
tlemen would  then,  considering  the  nature  of  their  causes, 
determine  whether  it  was  more  advisable  to  use  means 
to  postpone  or  to  bring  them  to  a  hearing. 

The  talents  of  the  judges  rather  increased  the  evil, 
than  afforded  a  corrective  for  the  vicious  constitution  of 
these  courrs.  They  had  not.  drawn  their  knowledge  from 
the  same  sources:  their  systems  were  different,  and  hence 


the  Judiciary  Establishment.  163 

the  character  of  the  court  more  essentially  changed  at 
each  successive  term.  Those  difficulties  and  embarrass- 
ments banished  suitors  from  the  court,  and  without  more 
than  a  common  motive,  recourse  was  seldom  had  to  the 
federal  tribunals. 

I  do  not  pretend,  Mr.  Chairman,  to  have  enumerated 
all  the  defects  which  belonged  to  the  former  judicial  sys- 
tem. But  I  trust  those  which  I  have  pointed  out,  in  the 
minds  of  candid  men,  will  justify  the  attempt  of  the 
legislature  to  revise  that  system,  and  to  make  a  fairer 
experiment  of  that  part  of  the  plan  of  our  constitution 
which  regards  the  judicial  power,  The  defects,  sir,  to 
which  I  have  alluded,  had  been  a  long  time  felt  and  often 
spoken  of.  Remedies  had  been  frequently  proposed.  I 
have  known  the  subject  brought  forward  in  congress,  or 
agitated  in  private,  ever  since  I  have  had  the  honour  of 
a  seat  on  this  floor.  I  believe,  sir,  a  great  and  just  defer- 
ence  for  the  author  of  the  ancient  scheme,  prevented  any 
innovation  upon  its  material  principles;  there  was  no 
gentleman  that  felt  that  deference  more  than  myself,  nor 
should  I  have  ever  hazarded  a  change  upon  speculative 
opinion,  but  practice  had  discovered  defects  which  might 
well  escape  the  most  discerning  mind  in  planning  the 
theory.  The  original  system  could  not  be  more  than  ex- 
periment; it  was  built  upon  no  experience.  It  was  the 
first  application  of  principles  to  a  new  state  of  things. 
The  first  judicial  law  displays  great  ability,  and  it  is  not 
in  the  least  a  disparagement  of  the  author,  to  say  its  plan 
is  not  perfect. 

I  know,  sir,  that  some  have  said,  and  perhaps  not  a 
few  have  believed,  that  the  new  system  wras  introduced, 
not  so  much  with  a  view  to  its  improvement  of  the  old, 
as  to  the  places  which  it  provided  for  the  friends  of  the 
administration.  This  is  a  calumny  so  notoriously  false, 
and  so  humble,  as  not  to  require  nor  to  deserve  an  an- 


164  Mr.  Bayard's  Speech  on 

swer  upon  this  floor.  It  cannot  be  supposed  that  the 
paltry  object  of  providing  for  sixteen  unknown  men, 
could  have  ever  offered  an  inducement  to  a  great  party, 
basely  to  violate  their  duty;  meanly  to  sacrifice  their 
character;  and  foolishly  to  forego  all  future  hopes. 

I  have  ever  considered  it  also,  as  a  defect  in  this  court, 
that  it  was  composed  of  judges  of  the  highest  and  lowest 
grades.  This,  sir,  was  an  unnatural  association;  the 
members  of  the  court  stood  on  ground  too  unequal,  to 
allow  the  firm  assertion  of  his  opinion  to  the  district 
judge.  Instead  of  being  elevated,  he  felt  himself  degrad- 
ed by  a  seat  upon  the  bench  of  this  court.  In  the  district 
court  he  was  every  thing,  in  the  circuit  court  he  was 
nothing.  Sometimes  he  was  obliged  to  leave  his  seat, 
while  his  associate  reviewed  the  judgment  which  he  had 
given  in  the  court  below.  In  all  cases  he  was  sensible 
that  the  sentences  in  the  court  in  which  he  was,  were 
subject  to  the  revision  and  control  of  a  superior  juris- 
diction, where  he  had  no  influence,  but  the  authority  of 
which  was  shared  by  the  judge  with  whom  he  was  act- 
ing. No  doubt  in  some  instances,  the  district  judge  was 
an  efficient  member  of  this  court,  but  this  never  arose 
from  the  nature  of  the  system,  but  from  the  personal 
character  of  the  man.  I  have  yet,  Mr.  Chairman,  another 
fault  to  find  with  the  ancient  establishment  of  the  circuit 
courts.  They  consisted  only  of  two  judges,  and  some- 
times of  one.  The  number  was  too  small,  considering 
the  extent  and  importance  of  the  jurisdiction  of  the  court. 
Will  you  remember,  sir,  that  they  hold  the  power  of  life 
and  death,  without  appeal.  That  their  judgments  were 
final  over  sums  of  two  thousand  dollars,  and  their  ori- 
ginal jurisdiction  restrained  by  no  limits  of  value,  and 
that  this  was  the  court  to  which  appeals  were  carried 
from  the  district  courts. 

I  have  often  heard,  sir,  that  in  a  multitude  of  council, 


the  Judiciary  Establishment.  Itio 

there  was  wisdom;  and  if  the  converse  of  the  maxim  be 
equally  true,  this  court  must  have  been  very  deficient. 
When  we  saw  a  single  judge  reversing  the  judgment  of 
the  district  court,  the  objection  was  not  striking,  but  the 
court  never  had  the  weight  which  it  ought  to  have  pos- 
sessed and  would  have  enjoyed,  had  it  been  composed 
of  more  members. 

But  two  judges  belonging  to  the  court,  an  inconveni- 
ence was  sometimes  felt  from  a  division  of  their  opinions. 
And  this  inconvenience  was  but  poorly  obviated  by  the 
provision  of  the  law,  that  in  such  cases  the  cause  should 
be  continued  to  the  succeeding  term,  and  receive  its  de- 
cision from  the  opinion  of  the  judge  who  should  then 
preside. 

I  now  come,  Mr.  Chairman,  to  examine  the  changes 
which  were  made  by  the  late  law.  This  subject  has  not 
been  correctly  understood.  It  has  every  where  been  er- 
roneously represented.  I  have  heard  much  said  about 
the  additional  courts  created  by  the  act  of  last  session.  I 
perceive  them  spoken  of  in  the  president's  message.  In 
the  face  of  this  high  authority,  I  undertake  to  state,  that 
no  additional  court  was  established  by  that  law.  Under 
the  former  system  there  was  one  supreme  court,  and 
there  is  but  one  now.  There  were  seventeen  district 
courts,  and  there  are  no  more  now.  There  was  a  circuit 
court  held  in  each  district,  and  such  is  the  case  at  pre- 
sent. Some  of  the  district  judges  are  directed  to  hold 
their  courts  at  new  places,  but  there  is  still  in  each  dis- 
trict but  one  district  court.  What,  sir,  has  been  done? 
The  unnatural  alliance  between  the  supreme  and  district 
courts  has  been  severed,  but  the  jurisdiction  of  both 
those  courts  remain  untouched.  The  power  or  authority 
of  neither  of  them  has  been  augmented  or  diminished. 
The  jurisdiction  of  the  circuit  court  has  been  extended 
to  the  cognizance  of  debts  of  four  hundred  dollars,  and 


166  Mr.  Bayard^s  Speech  on 

this  is  the  only  material  change  in  the  power  of  that 
court.  The  chief  operation  of  the  late  law  is  a  new  or- 
ganization of  the  circuit  courts.  To  avoid  the  evils  of 
the  former  plan,  it  became  necessary  to  create  a  new 
corps  of  judges.  It  was  considered  that  the  supreme 
court  ought  to  be  stationary,  and  to  have  no  connexion 
with  the  judges  over  whose  sentences  they  had  an  ap- 
pellate jurisdiction. 

To  have  formed  a  circuit  court  out  of  the  district 
judges,  would  have  allowed  no  court  of  appeal  from  the 
district  court,  except  the  supreme  court,  which  would 
have  been  attended  wit!1  great  inconvenience.  But  this 
scheme  was  opposed  by  a  still  greater  difficulty.  In  many 
districts  the  duties  of  the  judge  require  a  daily  attention. 
In  all  of  them  business  of  great  importance  may  on  un- 
expected occurrences  require  his  presence. 

This  plan  was  thought  of;  it  was  well  examined  and 
iinally  rejected,  in  consequence  of  strong  objections  to 
which  it  was  liable.  Nothing  therefore  remained,  but  to 
compose  the  circuit  court  of  judges  distinct  from  those 
of  the  other  courts.  Admitting  the  propriety  of  exclud- 
ing from  this  court  the  judges  of  the  supreme  and  dis- 
trict courts,  I  think  the  late  congress  cannot  be  accused 
of  any  wanton  expense  nor  even  of  a  neglect  of  economy 
in  the  new  establishment.  This  extensive  country  has 
been  divided  into  six  circuits,  and  three  judges  appoint- 
ed, for  each  circuit.  Most  of  the  judges  have  twice  a 
vear  to  attend  a  court  in  three  states,  and  there  is  not 
one  of  them  who  has  not  to  travel  farther,  and  who  in 
lime  will  not  have  more  labour  to  perform  than  any  judge 
of  the  state  courts.  When  we  call  to  mind  that  the  juris- 
diction of  this  court  reaches  the  life  of  the  citizen,  and 
that  in  civil  cases  its  judgments  are  final  to  a  large 
amount;  certainly  it  will  not  be  said  that  it  ought  to  have 
composed  of  less  than  three  judges.  One  was  surely 


the  Judiciary  Establishment.  167 

not  enough,  and  if  it  had  been  doubtful  whether  two 
were  not  sufficient,  the  inconvenience,  which  would  have 
frequently  arisen  from  an  equal  division  of  opinion,  jus- 
tifies the  provision  which  secures  a  determination  in  all 
cases. 

It  was  additionally  very  material  to  place  on  the  bench 
of  this  court,  a  judge  from  each  state,  as  the  court  was 
in  general  bound  to  conform  to  the  law  and  the  practice 
of  the  several  states. 

I  trust,  sir,  the  committee  are  satisfied  that  the  num- 
ber of  judges  which  compose  the  circuit  court  is  not  too 
great,  and  that  the  legislature  would  have  been  extremely 
culpable,  to  have  committed  the  high  power  of  the  court 
to  fewer  hands.  Let  me  now  ask,  if  the  compensation 
allowed  to  these  judges  is  extravagant.  It  is  little  more 
than  half  the  allowance  made  to  the  judges  of  the  supreme 
court.  It  is  but  a  small  proportion  of  the  ordinary  prac- 
tice of  those  gentlemen  of  the  bar  who  are  fit,  and  to 
whom  we  ought  to  look  to  fill  the  places.  You  have 
given  a  salary  of  two  thousand  dollars.  The  puisne 
judges  of  Pennsylvania,  I  believe,  have  more.  When 
you  deduct  the  expenses  of  the  office,  you  will  leave  but 
a  moderate  compensation  for  service,  but  a  scanty  pro- 
vision for  a  family.  When,  Mr.  Chairman,  gentlemen 
coolly  consider  the  amendments  of  the  late  law,  I  flatter 
myself  their  candour  will  at  least  admit  that  the  present 
modification  was  fairly  designed  to  meet  and  remedy  the 
evils  of  the  old  system. 

The  supreme  court  has  been  rendered  stationary.  Men 
of  age,  of  learning,  and  experience,  are  now  capable  of 
holding  a  seat  on  the  bench;  they  have  time  to  mature 
their  opinions  in  causes  on  which  they  were  called  to 
decide,  and  the^  have  leisure  to  devote  to  their  books, 
and  to  augment  their  store  of  knowledge.  It  was  our 
hope  by  the  present  establishment  of  the  court,  to  render 


168  Mr.  Bayard's  Speech  on 

it  the  future  pride  and  honour  and  safety  of  the  nation. 
It  is  this  tribunal  which  must  stamp  abroad  the  judicial 
character  of  our  country.  It  is  here  that  ambassadors 
and  foreign  agents  resort  for  justice,  and  it  belongs  to 
this  high  court  to  decide  finally,  not  only  on  controver- 
sies of  unlimited  value  between  individuals,  and  on  the 
more  important  collision  of  state  pretensions,  but  also 
upon  the  validity  of  the  laws  of  the  states,  and  of  this 
government.  Will  it  be  contended  that  such  great  trust 
ought  to  be  reposed  in  feeble  or  incapable  hands.  It  has 
been  asserted  that  this  court  will  not  have  business  to 
employ  it.  The  assertion  is  supported  neither  by  what 
is  past,  nor  by  what  is  likely  to  happen.  During  the  pre- 
sent session  of  congress,  at  their  last  term,  the  court  was 
fully  employed  for  two  weeks  in  the  daily  hearing  of 
causes.  But  its  business  must  increase.  There  is  no 
longer  that  restraint  upon  appeals  from  the  circuit  court, 
which  was  imposed  by  the  authority  of  the  judge  of  the 
court  to  which  the  appeal  was  to  be  carried;  no  longer 
will  the  apprehension  of  a  secret,  unavoidable  bias  in 
favour  of  the  decision  of  a  member  of  their  own  body, 
shake  the  confidence  of  a  suitor,  in  resorting  to  this 
court,  who  thinks  that  justice  has  not  been  done  to  him 
in  the  court  below.  The  progressive  increase  of  the 
wealth  and  population  of  the  country,  will  unavoidably 
swell  the  business  of  the  court.  But  there  is  a  more  cer- 
tain and  unfailing  source  of  employment,  which  will 
arise  in  the  appeals  from  the  courts  of  the  national  terri- 
tory. From  the  courts  of  original  cognizance  in  this  ter- 
ritory, it  affords  the  only  appellate  jurisdiction.  If  gen- 
tlemen will  look  to  the  state  of  property,  of  a  vast  amount 
in  this  city,  they  must  be  satisfied  that  the  supreme  court 
will  have  enough  to  do  for  the  money  which  is  paid 
them. 


the  Judiciary  Establishment.  169 

Let  us  next  consider,  sir,  the  present  state  of  the  cir- 
cuit courts. 

There  are  six  courts  which  sit  in  twenty-two  districts, 
each  court  visits  at  least  three  districts,  some  four.  The 
courts  are  now  composed  of  three  judges  of  equal  power 
and  dignity.  Standing  on  equal  ground  their  opinions 
will  be  independent  and  firm.  Their  number  is  the  best 
for  consultation,  and  they  are  exempt  from  the  inconve- 
nience of  an  equal  division  of  opinion.  But  what  I  value 
most,  and  what  was  designed  to  remedy  the  great  defect 
of  the  former  system,  is  the  identity  which  the  court 
maintains.  Each  district  has  now  always  the  same  court. 
Each  district  will  hereafter  have  a  system  of  practice 
and  uniformity  of  decision.  The  judges  of  each  circuit 
will  now  study,  and  learn  and  retain  the  laws  and  prac- 
tice of  their  respective  districts.  It  never  was  intended, 
nor  is  it  practicable,  that  the  same  rule  of  property  or  of 
proceeding  should  prevail  from  New  Hampshire  to 
Georgia.  The  old  courts  were  enjoined  to  obey  the  laws 
of  the  respective  states.  Those  laws  fluctuate  with  the 
will  of  the  state  legislatures,  and  no  other  uniformity  could 
ever  be  expected,  but  in  the  construction  of  the  consti- 
tution and  statutes  of  the  United  States.  This  unifor- 
mity is  still  preserved  by  the  control  of  the  supreme 
court  over  the  courts  of  the  circuits.  Under  the  present 
establishment,  a  rational  system  of  jurisprudence  will 
arise.  The  practice  and  local  laws  of  the  different  dis- 
tricts may  vary,  but  in  the  same  district  they  will  be 
uniform.  The  practice  of  each  district  will  suggest  im- 
provements to  the  others,  the  progressive  adoption  of 
which  will  in  time  assimilate  the  systems  of  the  several 

districts. 

u 

It  is  unnecessary,  Mr.  Chairman,  for  me  to  say  any 
thing  in  relation  to  the  district  courts.  Their  former 
jurisdiction  was  not  varied  bv  the  law  of  the  last  session* 

Vol.  II.  Y 


170  Mr.  Bayard's  Speech  on 

It  has  been  my  endeavour,  sir,  to  give  a  correct  idea 
of  the  defects  of  the  former  judicial  plan,  and  of  the  re- 
medies for  those  defects  introduced  by  the  law  now  de- 
signed to  be  repealed.  I  do  not  pretend  to  say  that  the 
present  system  is  perfect,  I  contend  only  that  it  is  better 
than  the  old.  If,  sir,  instead  of  destroying,  gentlemen 
will  undertake  to  improve  the  present  plan,  I  will  not 
only  applaud  their  motives,  but  will  assist  in  their  labour. 
We  ask  only  that  our  system  may  be  tried.  Let  the  sen- 
tence of  experience  be  pronounced  upon  it.  Let  us  hear 
the  national  voice  after  it  has  been  felt.  They  will  then 
be  better  able  to  judge  its  merits.  In  practice  it  has  not 
yet  been  complained  of;  and  as  it  is  designed  for  the  be- 
nefit of  the  people,  how  can  their  friends  justify  the  act 
of  taking  it  from  them"  before  they  have  manifested  their 
disposition  to  part  with  it? 

How,  sir,  am  I  to  account  for  the  extreme  anxiety  to 
get  rid  of  this  establishment?  Does  it  proceed  from  that 
spirit  which  since  power  has  been  given  to  it,  has  so 
unrelentingly  persecuted  men  in  office  who  belonged  to 
a  certain  sect?  I  hope  there  will  be  a  little  patience:  these 
judges  are  old  and  infirm  men;  they  will  die;  they  must 
die;  wait  but  a  short  time,  their  places  will  be  vacant; 
they  will  be  filled  with  the  disciples  of  the  new  school, 
and  gentlemen  will  not  have  to  answer  for  the  political 
murder  which  is  now  meditated. 

I  shall  take  the  liberty  now,  sir,  of  paying  some  atten- 
tion to  the  objections  which  have  been  expressed  against 
the  late  establishment.  An  early  exception  which,  in  the 
course  of  the  debate,  has  been  abandoned  by  most  gen- 
tlemen, and  little  relied  on  by  any  one,  is  the  additional 
expense.  The  gentleman  from  Virginia,  stated  the  ex- 
pense of  the' present  establishment  at  one  hundred  and 
thirty-seven  thousand  dollars.  On  this  head  the  material 
question  is,  not  what  is  the  expense  of  the  whole  esta- 


the  Judiciary  Establishment.  171 

blishment,  but  what  will  be  saved  by  the  repealing  law 
on  the  table.  I  do  not  estimate  the  saving  at  more  than 
twenty-eight  thousand  five  hundred  dollars.  You  save 
nothing  but  the  salaries  of  sixteen  judges  of  two  thousand 
dollars  each.  From  this  amount  is  to  be  deducted  the 
salary  of  a  judge  of  the  supreme  court,  which  is  three 
thousand  five  hundred  dollars.  Abolishing  the  present 
system  will  not  vary  the  incidental  expenses  of  the  cir- 
cuit court.  You  revive  a  circuit  court  whose  incidental 
expenses  will  be  equal  to  those  of  the  court  you  destroy. 
The  increased  salaries  of  the  district  judges  of  Kentucky 
and  Tennessee  must  remain.  It  is  not  proposed  to  abo- 
lish their  offices,  and  the  admissions  upon  the  other  side 
allow  that  the  salaries  cannot  be  reduced. 

If  there  were  no  other  objection,  the  present  bill  could 
not  pass  without  amendment,  because  it  reduces  the  sa- 
laries of  those  judges,  which  is  a  plain  undeniable  in- 
fraction of  the  constitution.  But,  sir,  it  is  not  a  fair  way 
of  treating  the  subject  to  speak  of  the  aggregate  expense. 
The  great  inquiry  is,  whether  the  judges  are  necessary, 
and  whether  the  salaries  allowed  to  them  are  reasonable? 
Admitting  the  utility  of  the  judges,  I  think  no  gentle- 
man will  contend,  that  the  compensation  is  extravagant. 

We  are  told  of  the  expense  attending  the  federal  judi- 
ciary. Can  gentlemen  tell  me  of  a  government  under 
which  justice  is  more  cheaply  administered;  add  together 
the  salaries  of  all  your  judges,  and  the  amount  but  little 
exceeds  the  emoluments  of  the  chancellor  of  England. 
Ascertain  the  expenses  of  state  justice,  and  the  propor- 
tion of  each  state  of  the  expense  of  federal  justice,  and 
you  will  find  that  the  former  is  five  times  greater  than 
the  latter.  Do  gentlemen  expect  that  a  system  expanded 
over  the  whole  union,  is  to  cost  no  more  than  the  esta- 
blishment of  a  single  state?  Let  it  be  remembered,  sir, 
that  the  judiciary  is  an  integral  and  co-ordinate  part  with 


172  Mr.  Bayard's  Speech  on 

the  highest  branches  of  the  government.  No  govern- 
ment can  long  exist  without  an  efficient  judiciary.  It  is 
the  judiciary  which  applies  the  law  and  enables  the  exe- 
cutive to  carry  it  into  effect.  Leave  your  laws  to  the 
judiciaries  of  the  states  to  execute,  and  my  word  for  it, 
in  ten  years  you  have  neither  law  nor  constitution.  Is 
your  judiciary  so  costly  that  you  will  not  support  it? 
Why  then  lay  out  so  much  money  upon  the  other  branches 
of  your  government?  I  beg  that  it  will  be  recollected  that 
if  your  judiciary  costs  you  thousands  of  dollars,  your 
legislature  costs  you  hundreds  of  thousands,  and  your 
executive  millions. 

An  objection  has  been  derived  from  the  paucity  of 
causes  in  the  federal  courts,  and  the  objection  has  been 
magnified  by  the  allegation,  that  the  number  had  been 
annually  decreasing.  The  facts  admitted,  I  draw  a  very 
different  inference  from  my  opponents.  In  my  opinion 
they  furnish  the  strongest  proof  of  the  defects  of  the 
former  establishment,  and  of  the  necessity  of  a  reform. 
I  have  no  doubt,  nay,  I  know  it  to  be  a  fact,  that  many 
suitors  were  diverted  from  those  tribunals  by  the  fluctua- 
tions to  which  they  were  subject.  Allow  me,  however, 
to  take  some  notice  of  the  facts.  They  are  founded  upon 
the  presidential  document.  No.  8.  Taking  the  facts  as 
there  stated,  they  allow  upwards  of  fifty  suits  annually 
for  each  court;  when  it  is  considered  that  these  causes 
must  each  have  exceeded  the  value  of  five  hundred  dol- 
lars, and  that  they  were  generally  litigated  cases,  I  do 
not  conceive,  that  there  is  much  ground  to  affirm,  that 
the  courts  were  without  business. 

But,  sir,  I  must  be  excused  for  saying,  I  pay  little 
respect  to  this  document.  It  has  been  shown  by  others 
in  several  points  to  be  erroneous,  and  from  my  own 
knowledge,  I  know  it  to  be  incorrect.  What  right  had 
the  president  to  call  upon  the  clerks  to  furnish  him  with 


the  Judiciary  Establishment.  173 

a  list  of  the  suits  which  had  been  brought,  or  were  de- 
pending in  their  respective  courts?  Had  this  been  direct- 
ed by  congress,  or  was  there  any  money  appropriated  to 
pay  the  expense?  Is  there  any  law  existing  which  made 
it  the  duty  of  the  clerks  to  obey  the  order  of  the  execu- 
tive? Are  the  clerks  responsible  for  refusing  the  lists,  or 
for  making  false  or  defective  returns?  Do  we  know  any 
thing  about  the  authenticity,  or  of  the  certificates  furnish- 
ed improperly  by  the  clerks?  And  are  we  not  aiming  a 
mortal  blow  at  one  branch  of  the  government,  upon  the 
credit,  and  at  the  instigation  of  another  and  a  rival  de- 
partment? Yes,  sir,  I  say  at  the  instigation  of  the  presi- 
dent, for  I  consider  this  business  wholly  as  a  presidential 
measure.  This  document  and  his  message,  show  that  it 
originated  with  him:  I  consider  it  as  now  prosecuted  by 
him,  and  I  believe,  that  he  has  the  power  to  arrest  its 
progress,  or  to  accomplish  its  completion.  I  repeat  that 
it  is  his  measure.  I  hold  him  responsible  for  it;  and  I  trust 
in  God  that  the  time  will  come,  when  he  will  be  called 
upon  to  answer  for  it  as  his  act.  And  I  trust  the  time 
will  arrive,  when  he  will  hear  us  speaking  upon  the  sub- 
ject more  effectually. 

It  has  been  stated  as  the  reproach,  sir,  of  the  bill  of 
the  last  session,  that  it  was  made  by  a  party  at  the  mo- 
ment when  they  were  sensible  that  their  power  was  ex- 
piring and  passing  into  other  hands.  It  is  enough  for 
me,  that  the  full"  and  legitimate  power  existed.  The 
remnant  was  plenary  and  efficient;  and  it  was  our  duty 
to  employ  it  according  to  our  judgments  and  consciences 
for  the  good  of  the  country.  We  thought  the  bill  a  salu- 
tary measure,  and  there  was  no  obligation  upon  us  to 
leave  it  as  a  work  for  our  successors.  Nay,  sir,  I  have 
no  hesitation  in  avowing,  that  I  had  no  confidence  in  the 
persons  who  were  to  follow  us:  and  I  was  the  more 
anxious  while  we  had  the  means  to  accomplish  a  work 


174  Mr.  Bayard's  Speech  on 

which  I  believed  they  would  not  do,  and  which  I  sin- 
cerely thought  would  contribute  to  the  safety  of  the 
nation,  by  giving  strength  and  support  to  the  constitu- 
tion, through  the  storm  to  which  it  was  likely  to  be  ex- 
posed. The  fears  which  I  then  felt,  have  not  been  dis- 
pelled, but  multiplied  by  what  I  have  since  seen.  I  know 
nothing  which  is  to  be  allowed  to  stand.  I  observe  the 
institutions  of  the  government  falling  around  me,  and 
where  the  work  of  destruction  is  to  end  God  alone 
knows.  We  discharged  our  consciences  in  establishing 
a  judicial  system,  which  now  exists,  and  it  will  be  for 
those  who  now  hold  the  power  of  the  government  to  an- 
swer for  the  abolition  of  it,  which  they  at  present  medi- 
tate. We  are  told,  that  our  law  was  against  the  sense  of 
the  nation.  Let  me  tell  these  gentlemen,  they  are  deceiv- 
ed when  they  call  themselves  the  nation.  They  are  only 
a  dominant  party,  and  though  the  sun  of  federalism 
should  never  rise  again,  they  will  shortly  find  men  better 
or  worse  than  themselves  thrusting  them  out  of  their 
places.  I  know  it  is  the  cant  of  those  in  power,  however 
they  have  acquired  it,  to  call  themselves  the  nation. 
We  have  recently  witnessed  an  example  of  it  abroad. 
How  rapidly  did  the  nation  change  in  France:  Brissot 
called  himself  the  nation — then  Robespierre;  afterwards 
Tallien  and  Barras,  and  finally  Bonaparte — but  their 
dreams  were  soon  dissipated,  and  they  awoke  in  succes- 
sion upon  the  scaffold,  or  in  banishment.  Let  not  these 
gentlemen  flatter  themselves,  that  heaven  has  reserved 
for  them  a  peculiar  destiny.  What  has  happened  to  others 
in  this  country,  they  must  be  liable  to.  Let  them  not  ex- 
ult too  highly  in  the  enjoyment  of  a  little  brief  and  fleet- 
ing authority.  It  was  ours  yesterday,  it  is  theirs  to-day, 
but  to-morrow  it  may  belong  to  others. 


the  Judiciary  Establishment.  175 

Saturday,  February  20,  1802. 

I  owe  to  the  committee  the  expression  of  my  thanks  for 
the  patience  with  which  they  attended  to  the  laborious  dis- 
cussion of  yesterday. 

It  will  be  my  endeavour  in  the  remarks  which  I  have 
to  offer  upon  the  remaining  point  of  the  debate,  to  con- 
sume no  time  which  the  importance  of  the  subject  does 
not  justify.  I  have  never  departed  from  the  question  before 
the  committee,  but  with  great  reluctance.  Before  I  heard 
the  gentleman  from  Virginia,  I  had  not  an  observation  to 
make  unconnected  with  the  bill  on  the  table.  It  was  he 
who  forced  me  to  wander  on  foreign  ground,  and  be  as- 
sured, sir,  I  shall  be  guilty  of  no  new  digressions  where 
I  am  not  covered  by  the  same  justification. 

I  did  think  that  this  was  an  occasion  when  the  house 
ought  to  have  been  liberated  from  the  dominion  of  party1 
spirit,  and  allowed  to  decide  upon  the  unbiassed  dictates 
of  their  understanding.  The  vain  hope  which  I  indulged 
that  this  course  would  be  pursued,  was  soon  dissipated  by 
the  inflammatory  appeal  made  by  the  gentleman  from 
Virginia,  to  the  passions  of  his  party.  This  appeal,  which 
treated  with  no  respect  the  feelings  of  one  side  of  the 
house,  will  excuse  recriminations  which  have  been  made, 
or  which  shall  be  retorted.  We  were  disposed  to  conciliate, 
but  gentlemen  are  deceived  if  they  think  that  we  will  sub- 
mit  to  be  trampled  on. 

I  shall  now,  sir,  proceed  to  the  consideration  of  the 
second  point  which  the  subject  presents.  However  this 
point  may  be  disguised  by  subtilties,  I  conceive  the  true 
question  to  be,  has  the  legislature  a  right  by  a  law  to  re- 
move a  judge?  Gentlemen  may  state  their  question  to  be, 
has  the  legislature  a  right  by  law  to  vacate  the  office  of  a 
judge?  But,  as  in  fact  they  remove  the  judges,  they  are 
bound  to  answer  our  question. 


176  Mr.  Bayard's  Speech  on 

The  question  which  I  state  they  will  not  meet.  Nay,  I 
have  considered  it  as  conceded  upon  all  hands,  that  the 
legislature  have  not  the  power  of  removing  a  judge  from 
his  office;  but  it  is  contended  only  that  the  office  may  be 
taken  from  the  judge.  Sir,  it  is  a  principle  in  law,  which 
ought,  and  I  apprehend  does,  hold  more  strongly  in 
politics,  that  what  is  prohibited  from  being  done  directly 
is  restrained  from  being  done  indirectly.  Is  there  any  dif- 
ference but  in  words  between  taking  the  office  from  a 
judge  and  removing  the  judge  from  the  office?  Do  you 
not  indirectly  accomplish  the  end,  which  you  admit  is 
prohibited.  I  will  not  say  that  it  is  the  sole  intention  of  the 
supporters  of  the  bill  before  us,  to  remove  the  circuit 
judges  from  their  offices;  but  I  will  say  that  they  establish 
a  precedent,  which  will  enable  worse  men  than  themselves 
to  make  use  of  the  legislative  power  for  that  purpose  upon 
any  occasion.  If  it  be  constitutional  to  vacate  the  office, 
and  in  that  way  to  dismiss  the  judge,  can  there  be  a  ques- 
tion as  to  the  power  to  recreate  the  office  and  to  fill  it  with 
another  man?  Repeal  to-day  the  bill  of  the  last  session, 
and  the  circuit  judges  are  no  longer  in  office.  To  morrow 
rescind  this  repealing  act  (and  no  one  will  doubt  the  right 
to  do  it)  and  no  effect  is  produced  but  the  removal  of  the 
judges.  To  suppose  that  such  a  case  may  occur  is  no  va- 
gary of  imagination.  The  thing  has  been  done,  shamelessly 
done,  in  a  neighbouring  state.  The  judges  there  held  their 
offices  upon  the  same  tenure  with  the  judges  of  the  United 
States.  Three  of  them  were  obnoxious  to  the  men  in 
power.  The  judicial  law  of  the  state  was  repealed,  and 
immediately  re-enacted  without  a  veil  being  thrown  over 
the  transaction.  The  obnoxious  men  were  removed,  their 
places  supplied  with  new  characters,  and  the  other  judges 
were  re-appointed. — Whatever  sophistry  may  be  able  to 
show  in  theory,  in  practice  there  never  will  be  found  a 


the  Judiciary  Establishment.  177 

difference  in  the  exercise  of  the  powers  of  removing  a 
judge  and  of  vacating  his  office. 

The  question,  which  we  are  now  considering,  depends 
upon  the  provisions  contained  in  the  constitution.  It  is  an 
error  of  the  committee,  upon  plain  subjects  to  search  for 
reasons  very  profound.  Upon  the  present  subject  the 
strong  provisions  of  the  constitution  are  so  obvious,  that 
no  eye  can  overlook  them.  They  have  been  repeatedly 
cited,  and  as  long  as  the  question  stated  is  under  discus- 
sion, they  must  be  reiterated.  There  are  two  prominent 
provisions  to  which  I  now  particularly  allude.  1st.  The 
judges  shall  hold  their  offices  during  good  behaviour.  2d. 
Their  compensation  shall  not  be  diminished  during  their 
continuance  in  office.  These  are  provisions  so  clearly  un- 
derstood upon  the  first  impression,  that  their  meaning  is 
rather  obscured  than  illustrated  by  argument.  What  is 
meant  and  what  has  been  universally  understood  by  the 
tenure  of  "  good  behaviour?"  A  tenure  for  life,  if  the 
judge  commit  no  misdemeanor.  It  is  so  understood  and 
expressed  in  England,  and  so  it  has  always  been  received 
and  admitted  in  this  country.  The  express  provision  then 
of  the  constitution  defines  the  tenure  of  a  judge's  office, 
a  tenure  during  life.  How  is  that  tenure  expressly  quali- 
fied? By  the  good  behaviour  of  the  judge.  Is  the  tenure 
qualified  by  any  other  express  condition  or  limitation?  No 
other.  As  the  tenure  is  express,  as  but  one  express  limi- 
tation is  imposed  upon  it,  can  it  be  subject  to  any  other 
limitation  not  derived  from  necessary  implication.  If  any 
material  provision  in  the  constitution  can  in  no  other  man- 
ner be  satisfied,  than  by  subjecting  the  tenure  of  this  office 
to  some  new  condition,  I  will  then  admit  that  the  tenure 
is  subject  to  the  condition. 

Gentlemen  have  ventured  to  point  out  a  provision  which 
they  conceived  furnished  this  necessary  implication.  They 
refer  to  the  power  given  to  congress  from  time  to  time  to 

Vol.  II.  Z 


178  Mr.  Bayard's  Speech  on 

establish  courts  inferior  to  the  supreme  court.  If  this 
power  cannot  be  exercised  without  vacating  the  offices  of 
existing  judges,  I  will  concede  that  those  offices  may  be 
vacated.  But  on  this  head  there  can  be  no  controversy. 
The  power  has  been  and  at  all  times  may  be  exercised 
without  vacating  the  office  of  any  judge.  It  was  so  ex- 
ercised at  the  last  session  of  congress;  and  I  surely  do  not 
now  dispute  the  right  of  gentlemen  to  establish  as  many 
new  courts  as  they  may  deem  expedient.  The  power  to 
establish  new  courts  does  not  therefore  necessarily  imply 
a  power  to  abolish  the  offices  of  existing  judges,  because 
the  existence  of  those  offices  does  not  prevent  an  execu- 
tion of  the  power. 

The  clause  in  the  constitution  to  which  I  have  just  al- 
luded has  furnished  to  gentlemen  their  famous  position, 
that  though  you  cannot  remove  a  judge  from  his  office, 
you  may  take  the  office  from  the  judge.  Though  I  should 
be  in  order,  I  will  not  call  this  a  quibble,  but  I  shall  at- 
tempt, in  the  course  of  the  argument,  yet  more  clearly  to 
prove  that  it  is  one.  I  do  not  contend  that  you  cannot 
abolish  an  empty  office,  but  the  point  on  which  I  rely  is, 
that  you  can  do  no  act  which  impairs  the  independence 
of  a  judge.  When  gentlemen  assert  that  the  office  may  be 
vacated  notwithstanding  the  incumbency  of  the  judge,  do 
they  consider  that  they  beg  the  very  point  which  is  in 
controversy.  The  office  cannot  be  vacated  without  violat- 
ing the  express  provision  of  the  constitution  in  relation  to 
the  tenure. 

The  judge  is  to  hold  the  office  during  good  behaviour. 
Does  he  hold  it  when  it  is  taken  from  him?  Has  the  con- 
stitution  said,  that  he  shall  hold  the  office  during  good 
behaviour,  unless  congress  shall  deem  it  expedient  to 
abolish  the  office?  If  this  limitation  has  been  omitted,  what 
authority  have  we  to  make  it  a  part  of  the  constitution? 

The  second  plain,  unequivocal  provision,  on  this  sub- 
ject is,  that  the  compensation  of  the  judge  shall  not  be 


the  Judiciary  Establishment.  179 

diminished  during  the  time  he  continues  in  office.  This 
provision  is  directly  levelled  at  the  power  of  the  legis- 
lature. They  alone  could  reduce  the  salary.  Could  this 
provision  have  any  other  design  than  to  place  the  judge 
out  of  the  power  of  congress;  and  yet  how  imperfect 
and  how  absurd  the  plan.  You  cannot  reduce  a  part  of 
the  compensation,  but  you  may  extinguish  the  whole. 
What  is  the  sum  of  this  notable  reasoning?  You  cannot 
remove  the  judge  from  the  office,  but  may  take  the  office 
from  the  judge.  You  cannot  take  the  compensation  from 
the  judge,  but  you  may  separate  the  judge  from  the  com- 
pensation. 

If  your  constitution  cannot  resist  reasoning  like  this, 
then  indeed  is  it  waste  paper. 

I  will  here  turn  aside,  in  order  to  consider  a  variety  of 
arguments  drawn  from  different  sources,  on  which  gentle- 
men on  the  other  side  have  placed  a  reliance.  I  know  of 
no  order  in  which  they  can  be  classed,  and  I  shall  there- 
fore take  them  up  as  I  meet  with  them  on  my  notes.  It 
was  urged  by  the  honourable  member  from  Virginia,  to 
whom  I  have  so  frequently  referred,  that  what  was  created 
by  law,  might  by  law  be  annihilated.  In  the  application 
of  his  principle,  he  disclosed  views  which,  I  believe,  have 
not  yet  been  contemplated  by  gentlemen  of  his  party.  He 
was  industrious  to  show  that  not  only  the  inferior  courts, 
but  the  supreme  court,  derives  its  existence  from  law. 
The  president  and  legislature  exist  under  the  constitu- 
tion. They  came  into  being  without  the  aid  of  a  law.  But 
though  the  constitution  said,  there  should  be  a  supreme 
court,  no  judges  could  exist  till  the  court  was  organized 
by  law.  This  argument,  I  presume,  was  published  to 
this  extent  in  order  to  give  notice  to  the  judges  of  the 
supreme  court  of  their  fate,  and  to  bid  them  prepare  for 
their  end. 

I  shall  not  attempt  to  discriminate  between  the  tenure 


180  Mr.  Bayarfrs  Speech  on 

of  the  offices  of  the  judges  of  the  supreme  and  inferior 
courts:  congress  has  power  to  organize  both  descriptions 
of  courts,  and  to  limit  the  number  of  judges,  but  they 
have  no  power  to  limit  or  define  the  tenure  of  offices. 
Congress  creates  the  offices;  the  president  appoints  the 
officer:  but  it  is  neither  under  congress  or  the  president, 
but  under  the  constitution,  that  the  judge  claims  to  hold 
the  office  during  good  behaviour.  The  principle  asserted 
does  not  in  this  case  apply;  the  tenure  of  office  is  not 
created  by  law,  and  if  the  truth  of  the  principle  were  ad- 
mitted, it  would  not  follow  that  the  tenure  of  the  office 
might  be  vacated  by  law.  But  the  principle  is  not  sound. 
I  will  show  a  variety  of  cases  which  will  prove  its  fallacy. 
Among  the  obnoxious  measures  of  the  late  administra- 
tion, was  the  loan  of  five  millions,  which  was  funded  at  8 
per  cent.  The  loan  was  created  by  a  law  and  funded  by 
law.  Is  the  gentleman  prepared  to  say,  that  this  debt  which 
was  funded  by  a  law  of  the  former  legislature,  may  be 
extinguished  by  a  law  of  the  present.  Can  you,  by  calling 
the  interest  of  this  debt  exorbitant  and  usurious,  justify 
the  reduction  of  it?  Gentlemen  admit,  that  the  salary  of  a 
judge,  though  established  by  a  law,  cannot  be  diminished 
by  a  law.  The  same  thing  must  be  allowed  with  respect 
to  the  salary  of  the  president.  Sir,  the  true  principle  is, 
that  one  legislature  may  repeal  the  act  of  a  former,  in  cases 
not  prohibited  by  the  constitution.  The  correct  question 
therefore  is,  whether  the  legislature  are  not  forbidden  by 
the  constitution  to  abridge  the  tenure  of  a  judicial  office? 

In  order  to  avoid  cases  of  a  nature  similar  to  those 
which  I  have  put,  the  gentleman  from  Kentucky,  (Mr. 
Davis)  and  after  him  the  gentleman  from  Virginia,  endea- 
voured to  draw  a  distinction  between  the  laws  executed 
and  laws  executory. 

The  distinction  was  illustrated  by  reference  to  the  case 
of  a  state  admitted  bv  a  law  into  the  union.  Here  it  is  said 


the  Judiciary  Establishment.  181 

the  law  is  executed,  and  functus  officio,  and  if  you  repeal 
it,  still  the  state  remains  a  member  of  the  union.  But  it 
was  asked  by  the  gentleman  from  Kentucky,  supposing 
a  law  made  to  admit  a  state  into  the  union,  at  a  future 
time,  before  the  time  of  admission  arrived,  could  not  the 
law  be  repealed?  I  will  answer  the  question  to  the  satisfac- 
tion of  the  gentleman,  by  stating  a  case  which  exists.  By 
an  ordinance  of  congress,  in  the  year  1787,  congress  or- 
dained, that  when  the  population  within  the  limits  of  a 
state  within  the  North  Western  territory,  should  amount 
to  60,000  souls,  the  district  should  be  admitted  as  a 
member  ol    die  union.     Will  the  gentleman  venture  to 

o 

doubt  as  to  this  case?  Would  he  dare  to  tell  the  people 
of  this  country,  that  congress  had  the  power  to  disfranchise 
them. 

The  law,  in  the  case  I  refer  to,  is  executory,  though 
the  event  upon  which  it  is  to  take  effect  is  limited  by  po- 
pulation and  not  by  time? 

But,  sir,  if  there  were  any  thing  in  the  principle,  it  has 
no  influence  upon  the  case  to  which  it  has  been  applied. 
A  law  has  created  the  office  of  a  judge,  the  judge  has  been 
appointed  and  the  office  filled.  The  law  is  therefore  exe- 
cuted, and  upon  the  very  distinction  of  the  gentleman, 
cannot  be  repealed.  The  law  fixing  the  compensation  is 
executory,  and  so  is  that  which  establishes  the  salary  of 
the  President;  but  though  executory,  they  cannot  be  re- 
pealed. The  distinction  therefore  is  idle,  and  leaves  the 
question  upon  the  ground  of  the  repeal  being  permitted  or 
prohibited  by  the  constitution.  I  shall  now  advert,  sir,  to 
an  argument  urged  with  great  force  and  not  a  little  triumph, 
by  the  honourable  member  from  Virginia.  This  argument 
is  derived  from  the  word  '  hold'  in  the  expression,  the 
judge  shall  hold  his  office  during  good  behaviour.  It  is 
considered  as  correlative  to  tenure.  The  gentleman  re- 
marks,  that  the  constitution  provides,  that  the  president 


182  Mr.  Bayard' }s  Speech  oil 

shall  nominate  the  judge  to  his  office,  and  when  approved 
by  the  senate,  shall  commission  him.  It  is  hence  inferred, 
that  as  the  president  nominates  and  commissions  the  judge, 
the  judge  holds  the  office  of  the  president;  and  that  when 
the  constitution  provides,  that  the  tenure  of  the  office  shall 
be  during  good  behaviour,  the  provision  applies  to  the 
president,  and  restrains  the  power  which  otherwise  would 
result  in  consequence  of  the  offices  being  holden  of  him, 
to  remove  the  judges  at  will.  This  is  an  argument,  sir, 
which  I  should  have  thought  that  honourable  member 
would  have  been  the  last  person  upon  this  floor  to  have 
adopted.  It  not  only  imputes  to  the  president  royal  attri- 
butes, but  prerogatives,  derived  from  the  rude  doctrines 
of  the  feudal  law.  Does  the  gentleman  mean  to  contend, 
that  the  president  of  these  states,  like  the  monarch  of 
England,  is  the  fountain  of  honour,  of  justice  and  of  office? 
Does  he  mean  to  contend,  that  the  courts  are  the  presi- 
dent's courts,  and  the  judges,  the  president's  judges?  Does 
he  mean  to  say,  sir,  that  the  chief  magistrate  is  always 
supposed  to  be  present  in  these  courts,  and  that  the  judges 
are  but  the  images  of  his  justice?  To  serve  the  paltry  pur- 
poses of  this  argument,  would  the  gentleman  be  willing  to 
infuse  into  our  constitution,  the  vital  spirit  of  the  feudal 
doctrines?  He  does  not  believe,  he  cannot  believe,  that 
when  the  wrord  '  hold'  was  employed,  any  reference  was 
had  to  its  feudal  import.  The  language  of  the  constitution 
furnishes  no  support  to  this  feudal  argument.  These  offi- 
cers are  not  called  the  judges  of  the  president,  but  the 
judges  of  the  United  States.  They  are  a  branch  of  the 
government  equally  important,  and  designed  to  be  co-or- 
dinate with  the  president.  If,  sir,  because  the  president 
nominates  to  office  and  commissions,  the  office  is  held  of 
him — for  a  stronger  reason,  where  by  patent  he  grants 
lands  of  the  United  States,  the  lands  are  held  of  him.  And 
upon  the  grantee's  dying  without  heirs,  the  lands  would 


the  Judiciary  Establishment.  1S3 

escheat  not  to  the  United  States  but  to  the  president. 
In  England,  the  tenure  of  lands  and  offices  is  derived 
from  the  same  principle.  All  lands  are  held  mediately,  or 
immediately  of  the  crown,  because  they  are  supposed  to 
have  been  originally  acquired  from  the  personal  grant  of 
the  monarch.  It  is  the  same  of  office,  as  the  king  is  sup- 
posed to  be  the  source  of  all  offices.  Having  the  power  to 
grant,  he  has  a  right  to  define  the  terms  of  the  grant. 
These  terms  constitute  the  tenure.  When  the  terms  fail, 
the  tenure  ceases,  and  the  object  of  the  grant  reverts  to 
the  granter.  This  gentleman  has  charged  others  with  mo- 
narchical tendencies,  but  never  have  I  before  witnessed 
an  attempt  so  bold  and  strong  to  incorporate  in  our  con- 
stitution, a  rank  monarchical  principle.  If,  sir,  the  princi- 
ple of  our  constitution  on  this  subject  be  republican  and 
not  monarchical,  and  the  judges  hold  their  offices  of  the 
United  States,  and  not  of  the  president,  then  the  applica- 
tion of  his  argument  has  all  the  force  against  the  gentle- 
man, which  he  designed  it  should  have  against  his  adver- 
saries. For  if  the  office  be  held  of  the  United  States,  and 
the  tenure  of  good  behaviour  was  designed  to  restrain  the 
power  of  those  of  whom  the  office  was  holden,  it  will  fol- 
low, that  it  was  the  intention  to  restrain  the  power  of  the 
United  States. 

We  were  told  by  an  honourable  gentleman  from  Vir- 
ginia, who  rose  early  in  the  debate  (Mr.  Thompson)  that 
the  principles  we  advocated  tended  to  establish  a  sinecure 
system  in  the  country.  Sir,  I  am  as  little  disposed  to  be 
accessary  to  the  establishment  of  such  a  system,  as  any 
gentleman  on  this  floor.  But  let  me  ask  how  this  system 
is  to  be  produced?  We  established  judicial  offices,  to 
which  numerous  and  important  duties  were  assigned.  A 
compensation  hits  been  allowed  to  the  judges,  which  no 
one  will  say,  is  immediate,  or  disproportioned  to  the  ser- 
vice to  be  rendered.  These  gentlemen  first  abolish  the 


184  Mr.  Bayard's  Speech  on 

duties  of  the  offices;  then  call  the  judges  pensioners;  and 
afterwards  accuse  us  of  establishing  sinecures.  There  are 
no  pensioners  at  present;  if  there  should  be  any,  they  will 
be  the  creatures  of  this  law.  I  have  ever  considered  it  as 
a  sound  and  moral  maxim,  that  no  one  should  avail  him- 
self of  his  own  wrong.  It  is  a  maxim,  which  ought  to  be 
equally  obligatory  upon  the  public  as  upon  the  private 
man.  In  the  present  case,  the  judge  offers  you  his  service. 
You  cannot  say,  it  is  not  worth  the  money  you  pay  for 
it.  You  refuse  to  accept  the  service;  and  after  engaging  to 
pay  him  while  he  continued  to  perform  the  service,  you 
deny  him  his  compensation,  because  he  neglects  to  ren- 
der services  which  you  have  prevented  him  from  perform- 
ing. Was  injustice  ever  more  flagrant?  Surely,  sir,  the 
judges  are  innocent.  If  we  did  wrong,  why  should  they 
be  punished  and  disgraced?  They  did  not  pass  the  ob- 
noxious law,  they  did  not  create  the  offices,  they  had  no 
participation  in  the  guilty  business:  but  they  were  invited 
upon  the  faith  of  government,  to  renounce  their  private 
professions,  to  relinquish  the  emolument  of  other  employ- 
ments, and  to  enter  into  the  service  of  the  United  States, 
who  engaged  to  retain  them  during  their  lives,  if  they 
were  guilty  of  no  misconduct.  They  have  behaved  them- 
selves well,  unexceptionably  well,  when  they  find  the  go- 
vernment rescinding  the  contract  made  with  them,  refus- 
ing the  stipulated  price  of  their  labour,  dismissing  them 
from  service,  and  in  order  to  cover  the  scandalous  breach 
of  faith,  stigmatizing  them  with  names  which  may  render 
them  odious  to  their  countrymen.  Is  there  a  gentleman 
on  the  floor  of  this  house,  w7ho  would  not  revolt  at  such 
conduct  in  private  life?  Is  there  one  who  would  feel  him- 
self justified,  after  employing  a  person  for  a  certain  time, 
and  agreeing  to  pay  a  certain  compensation,  to  dismiss 
the  party  from  the  service  upon  any  caprice  which  altered 
his  views,  deny  him  the  stipulated  compensation,  and  to 


the  Judiciary  Establishment.  185 

abuse  him  with  opprobrious  names,  for  expecting  the  be- 
nefit of  the  engagement? 

A  bold  attempt  was  made  by  one  of  the  gentlemen  from 
Virginia,  (Mr.  Giles)  to  force  to  his  aid  the  statute  of 
13th  Wm.  III.  I  call  it  a  bold  attempt,  because  the  gen- 
tleman was  obliged  to  rely  upon  his  own  assertion  to  sup- 
port the  ground  of  his  argument.  He  statecj,  that  the  clause 
in  the  constitution  was  borrowed  from  a  similar  provision 
in  the  statute.  I  know  nothing  about  the  fact,  but  I  will 
allow  the  gentleman  its  full  benefit.  In  England,  at  an  early 
period,  the  judges  held  their  commissions  during  the  good 
pleasure  of  the  monarch.  The  parliament  desired,  and  the 
king  consented,  that  the  royal  prerogative  should  be  res- 
trained. That  the  offices  of  the  judges  should  not  depend 
on  the  will  of  the  crown  alone,  but  upon  the  joint  pleasure 
of  the  crown  and  the  parliament.  The  king  consented  to 
part  with  a  portion  of  his  prerogative,  by  relinquishing  his 
power  to  remove  the  judges  without  the  advice  of  his  par- 
liament. But  by  an  express  clause  in  the  statute^  he  re- 
tained the  authority  to  remove  them  with  the  advice  of  his 
parliament.  Suppose  the  clause  had  been  omitted,  which 
reserved  the  right  to  remove  upon  the  address  of  the  two 
hout.es  of  parliament,  and  the  statute  had  been  worded 
in  the  unqualified  language  of  our  constitution,  that  the 
judges  should  hold  their  offices  during  good  behaviour, 
would  not  the  prerogative  of  removal  have  been  abolished 
altogether?  I  will  not  say  that  the  honourable  member  has 
been  particularly  unfortunate  in  the  employment  of  this 
argument,  because,  sir,  it  appears  to  me,  that  most  to 
which  he  has  had  recourse,  when  justly  considered,  have 
operated  against  the  cause  they  were  designed  to  support. 

The  gentleman  tells  us  that  the  constitutional  provision 
on  this  subject  was  taken  from  the  statute  of  William — 
Will  he  answer  me  this  plain  question:  Why  do  we  find 
omitted  in  the  constitution,  that  part  of  the  statutory  pro- 

Vol.  II.  2  A 


186  Mr.  Bayard' s  Speech  on 

vision,  which  allowed  the  judges  to  be  removed  upon  the 
address  of  the  two  branches  of  the  legislature?  Does  he  sup- 
pose that  the  clause  was  not  observed?  Does  he  imagine  that 
the  provision  was  dropt  through  inadvertency?  Will  he 
impute  so  gross  a  neglect  to  an  instrument,  every  sentence, 
and  word,  and  comma,  of  which,  he  has  told  us  was  so 
maturely  considered,  and  so  warily  settled.  No,  sir,  it  is 
impossible;  and  give  me  leave  to  say,  that  if  this  part  of 
the  constitution  were  taken  from  the  statute  (and  the  gen- 
tleman from  Virginia  must  have  better  information  on  the 
subject  than  I  have)  that  a  stronger  argument  could  not 
be  admitted  to  show  that  it  was  the  intention  of  those  who 
framed  the  constitution,  by  omitting  that  clause  in  the 
statute  which  rnude  the  judges  tenants  of  their  offices  at 
the  will  of  parliament,  to  improve  in  this  country  the 
English  plan  of  judicature,  by  rendering  the  judges  inde- 
pendent of  the  legislature.  And  I  shall  have  occasion  in 
the  course  of  my  observations  to  show,  that  the  strongest 
reasons  derived  from  the  nature  of  our  government,  and 
which  do  not  apply  to  the  English  form,  require  the  im- 
provement to  be  made. 

Upon  this  point,  sir,  we  may  borrow  a  few  additional 
rays  of  light  from  the  constitutions  of  Pennsylvania,  of 
Delaware,  and  of  some  other  states.  In  those  states  it  has 
been  thought,  that  there  might  be  misconduct  on  the  part 
of  a  judge  not  amounting  to  an  impeachable  offence,  for 
which  he  should  be  liable  to  be  removed.  Their  constitu- 
tions therefore  have  varkd  from  that  of  the  United  States, 
and  rendered  the  judges  liable  to  be  removed  upon  the 
address  of  two  thirds  of  each  branch  of  the  legislature. 
Does  it  not  strike  every  mind,  that  it  was  the  intention  of 
then  constitutions  to  have  judges  independent  of  a  ma- 
jority of  each  branch  of  the  legislature;  and  I  apprehend 
also  that  it  may  be  fairly  inferred,  that  it  was  understood 
in  those  states,  when  their  constitutions  Mere  formed,  that 


the  Judiciary  Establishment.  187 

even  two- thirds  of  each  branch  of  the  legislature  would 
not  have  power  to  remove  a  judge  whose  tenure  of  office 
was  during  good  behaviour,  unless  the  power  was  ex- 
pressly given  to  them  by  the  constitution.  I  cannot  well 
conceive  of  a  thing  more  absurd  in  an  instrument  as  signed 
to  last  for  centuries  and  to  bias  the  furious  passions  of 
party,  than  to  fortify  one  pass  to  judicial  independence, 
and  leave  another  totally  unguarded  against  the  violence 
of  legislative  power. 

It  has  been  urged  by  the  gentleman  from  Virginia,  that 
our  admission  that  congress  has  a  power  to  modify  the 
office  of  judge,  leads  to  the  conclusion,  that  they  have  the 
power  to  abolish  the  office.  Because,  by  paring  away  these 
powers  they  may  at  length  reduce  them  to  a  shadow,  and 
leave  them  as  humble  and  as  contemptible  as  a  court  of 
piepoudre.  The  office  of  a  judge  consists  in  judicial  pow- 
ers which  he  is  appointed  to  execute.  Every  law  which  is 
passed  increases  or  diminishes  those  powers,  and  so  far 
modifies  the  office:  nay,  it  is  competent  for  the  legislature 
to  prescribe  additional  duties  or  to  dispense  with  unneces- 
sary services,  which  are  connected  with  the  office  of  the 
judge.  But  that  power  has  its  bounds.  You  may  modify 
the  office  to  any  extent  which  does  not  affect  the  inde- 
pendence of  the  judges.  The  judge  is  to  hold  the  office 
during  good  behaviour;  now  modify  as  you  please,  so  that 
you  do  not  infringe  the  constitutional  provision. 

Do  you  ask  me  to  draw  a  line  and  say,  thus  far  you 
can  go  and  no  farther.  I  admit  no  line  can  be  drawn.  It  is 
an  affair  of  sound  and  bona  Jide  discretion. — Because  a 
discretion  on  the  subject  is  given  to  the  legislature,  to 
argue  upon  the  abuse  of  that  discretion  is  adopting  a  prin- 
ciple subversive  of  all  legitimate  power. 

The  constitution  is  predicated  upon  the  existence  of  a 
certain  degree  of  integrity  in  man.  It  has  trusted  powers 
liable  to  enormous  abuse,  if  all  political  honesty  be  dis- 


188  Mr.  Bayard1  s  Speech  on 

carded.  The  legislature  is  not  limited  in  the  amount  of 
the  taxes  which  they  have  a  right  to  impose,  nor  as  to 
the  objects  to  which  they  are  to  be  applied.  Does  this 
power  give  us  the  property  of  the  country,  because  by 
taxes  we  might  draw  it  into  the  public  coffers,  and  then 
cut  up  the  treasury  and  divide  the  spoils?  Is  there  any 
power  in  respect  to  which  a  precise  line  can  be  drawn, 
between  the  discreet  exercise  and  the  abuse  of  it. 

I  can  only  say  therefore  on  this  subject,  that  every  man 
is  acquitted  to  his  own  conscience  who  bonajide  does  not 
intend,  and  who  sincerely  does  not  believe,  that  by  the 
law  which  he  is  about  to  pass,  he  interferes  with  the 
judges  holding  their  offices  during  good  behaviour. 

I  am  now  brought,  Mr.  Chairman,  to  take  notice  of 
some  remarks  which  feil  from  the  gentleman  from  Vir- 
ginia, which  do  not  belong  to  the  subject  before  us,  but 
are  of  sufficient  importance  to  deserve  particular  attention. 
He  called  our  attention  in  a  very  impressive  manner  to  the 
state  of  parties  in  this  house,  at  the  time  when  the  act  of 
the  last  session  passed.  He  describes  us  in  a  state  of  blind 
paroxysm,  incapable  of  discerning  the  nature  or  tendency 
of  the  measures  we  were  pursuing.  That  a  majority  of  the 
house  were  struggling  to  counteract  the  expression  of  the 
public  will,  in  relation  to  the  person  who  was  to  be  the 
chief  magistrate  of  the  country. 

I  did  suppose,  sir,  that  this  business  was  at  an  end,  and 
I  did  imagine  that  as  gentlemen  had  accomplished  their 
object,  they  would  have  been  satisfied.  But  as  the  subject 
is  again  renewed,  we  must  be  allowed  to  justify  our  con- 
duct. I  know  not  what  the  gentleman  calls  an  expression 
of  the  public  will.  There  were  two  candidates  for  the 
office  of  president,  who  were  presented  to  the  house  of 
representatives  with  equal  suffrages.  The  constitution  gave 
us  the  right  and  made  it  our  duty  to  elect  that  one  of  the 
two  whom  we  thought  preferable.  A  public  man  is  to 


the  Judiciary  Establishment,  18& 

notice  the  public  will  as  constitutionally  expressed.  The 
gentleman  from  Virginia  and  many  others  have  had  their 
preference,  but  that  preference  of  the  public  will  did  not 
appear  by  its  constitutional  expression.  Sir,  I  am  not  cer- 
tain, that  either  of  those  candidates  had  a  majority  of  the 
country  in  his  favour.  Excluding  the  state  of  South  Caro- 
lina, the  country  was  equally  divided.  We  know  that  par- 
ties in  that  state  were  nearly  equally  balanced,  and  the 
claims  of  both  the  candidates  were  supported  by  no  other 
scrutiny  into  the  public  will,  that  our  official  return  of 
votes.  Those  votes  are  very  imperfect  evidence  of  the 
true  will  of  a  majority  of  the  nation.  They  resulted  from 
political  intrigue,  and  artificial  arrangement. 

When  we  look   at  the  votes  we  must  suppose,  that 
every  man  in  Virginia  voted  the  same  way.  These  votes 
are  received  as  a  correct  expression  of  the  public  will. 
And  yet  we  know,  that  if  the  votes  of  that  state  were  ap- 
portioned according  to  the  several  voices  of  the  people, 
that  at  least  seven  out  of  twenty-one,  would  have  been 
opposed  to  the  successful  candidate.  It  was  the  suppres- 
sion of  the  will  of  one-third  of  Virginia,  which  enables 
gentlemen  now  to  say,  that  the  present  chief  magistrate 
is  the  man  of  the  people.    I  consider  that  as  the  public- 
will,  which  is  expressed  by  the  constitutional  organs.  To 
that  will  I  bow  and  submit.  The  public  will,  thus  mani- 
fested, gave  the  house  of  representives  the  choice  of  the 
two  men  for  president.   Neither  of  them  was  the  man 
whom  I  wished  to  make  president,  but  my  election  was 
confined  by  the  constitution  to  one  of  the  two,  and  I  gave 
my  vote  to  the  one  who  I  thought  was  the  greater  and 
better  man.    That  vote  I  repeated,  and  in  that  vote  I 
should  have  persisted,  had  I  not  been  driven  from  it  by 
imperious  necessity.    The  prospect  ceased  of  the  vote 
being  effectual,  and  the  alternative  only  remained  of  tak- 


190  Mr.  Bayard's  Speech  on 

ing  one  man  for  president,  or  having  no  president  at  all. 
I  chose,  as  I  then  thought,  the  lesser  evil. 

From  the  scene  in  this  house,  the  gentleman  carried  us 
to  one  in  the  senate.  I  should  blush,  sir,  for  the  honour  of 
the  country,  could  I  suppose  that  the  law  designed  to  be 
repealed,  owed  its  support  in  that  body  to  the  motives 
which  have  been  indicated.  The  charge  designed  to  be 
conveyed,  not  only  deeply  implicates  the  integrity  of  in- 
dividuals of  the  senate,  but  of  the  person  who  was  then 
the  chief  magistrate.  The  gentleman,  going  beyond  all 
precedent,  has  mentioned  the  names  of  members  of  that 
body,  to  whom  commissions  issued  from  offices  not  cre- 
ated by  the  bill  before  them,  but  which  that  bill  by  the 
promotions  it  afforded  was  likely  to  render  vacant.  He  has 
considered  the  scandal  of  the  transaction,  as  aggravated 
by  the  issuing  of  commissions  for  offices  not  actually  va- 
cant, upon  the  bare  presumption  that  they  would  become 
vacant,  by  the  incumbents  accepting  commissions  for 
higher  offices  which  were  issued  in  their  favour.  The 
gentleman  has  particularly  dwelt  upon  the  indecent  ap- 
pearance of  the  business  from  two  commissions  being 
held  by  different  persons  at  the  same  time  for  the  same 
office. 

I  beg  that  it  will  be  understood,  that  I  mean  to  give  no 
opinion  as  to  the  regularity  of  granting  a  commission  for 
a  judicial  office,  upon  the  probability  of  a  vacancy,  before 
it  is  actually  vacant,  but  I  shall  be  allowed  to  say  that  so 
much  doubt  attends  the  point,  that  an  innocent  mistake 
might  be  made  on  the  subject.  I  believe,  sir,  it  has  been 
the  practice  to  consider  the  acceptance  of  an  office,  as  re- 
lating to  the  date  of  the  commission.  The  officer  is  allowed 
his  salary  from  the  date,  upon  the  principle  that  the  com- 
mission is  a  grant  of  the  office,  and  the  title  commences 
with  the  date  of  the  grant.  This  principle  is  certainly  liable 
to  abuse,  but  where  there  was  a  suspicion  of  abuse,  I  pre- 


tkc  Judiciary  Establishtnetvt.  191 

sume  the  government  would  depart  from  it.  Admitting 
the  office  to  pass  by  the  commission,  and  the  acceptance 
to  relate  to  its  date,  it  then  does  not  appear  very  incorrect, 
in  the  case  of  a  commission  for  the  office  of  a  circuit 
judge,  granted  to  a  district  judge,  as  the  acceptance  of  the 
commission  for  the  former  office  relates  to  the  date  of  the 
commission,  to  consider  the  latter  office  as  vacant  from 
the  same  time.  The  offices  are  incompatible.  You  cannot 
suppose  the  same  person  in  both  offices  at  the  same  time. 
From  the  moment,  therefore,  that  you  consider  the  office 
of  circuit  judge  filled  by  a  person  who  holds  the  commis- 
sion of  district  judge,  you  must  consider  the  office  of  dis- 
trict judge  as  vacated.  The  grant  is  contingent.  If  the 
contingency  happen,  the  office  vests  from  the  date  of  the 
commission,  if  the  contingency  does  not  happen  the  grant 
is  void.  If  this  reasoning  be  sound,  it  was  not  irregular  in 
the  late  administration,  after  granting  a  commission  to  a 
district  judge,  for  the  place  of  a  circuit  judge,  to  make  a 
grant  of  the  office  of  the  district  judge,  upon  the  contin- 
gency of  his  accepting  the  office  of  circuit  judge.  I  now 
return,  sir,  to  that  point  of  the  charge,  which  was  personal 
in  its  nature,  and  of  infinitely  the  most  serious  import.  It 
is  a  charge  as  to  which,  wfc  can  only  ask,  is  it  true?  If  it 
be  true,  it  cannot  be  excused;  it  cannot  be  palliated;  it  is 
vile  profligate  corruption,  which  every  honest  mind  will 
execrate.  But,  sir,  we  are  not  to  condemn,  till  we  have 
evidence  of  the  fact.  If  the  offence  be  serious,  the  proof 
ought  to  be  plenary.  I  will  consider  the  evidence  of  the 
fact,  upon  which  the  honourable  member  has  relied,  and 
I  will  show  him  by  the  application  of  it  to  a  stronger  case, 
that  it  is  of  a  nature  to  prove  nothing. 

Let  me  first  state  the  principal  case.  Two  gentlemen 
of  the  senate,  Mr.  Read  of  South  Carolina,  and  Mr. 
Green  of  Rhode  Island,  who  voted  in  favour  of  the  law 
of  last  session,  each  received  an  appointment  to  the  place 


192  Mr.  Bayard 's  Speech  on 

of  district  judge,  which  was  designed  to  be  vacated  by 
the  promotion  of  the  district  judge  to  the  office  of  circuit 
judge.  The  gentleman  conveyed  to  us  a  distinct  impres- 
sion of  his  opinion,  that  there  was  an  understanding  be- 
tween these  gentlemen  and  the  president,  and  that  the 
offices  were  the  promised  price  of  their  votes. 

I  presume,  sir,  the  gentleman  will  have  more  charity, 
in  the  case  which  I  am  about  to  mention,  and  he  will  for 
once  admit  that  public  men  ought  not  to  be  condemned, 
upon  loose  conclusions  drawn  from  equivocal  presump- 
tions. 

The  case,  sir,  to  which  I  refer,  carries  me  once  more 
to  the  scene  of  the  presidential  election.  I  should  not  have 
introduced  it  into  this  debate,  had  it  not  been  called  up 
by  the  honourable  member  from  Virginia.  In  that  scene 
I  had  my  part;  it  was  a  part  not  barren  of  incident,  and 
which  has  left  an  impression,  which  cannot  easily  depart 
from  my  recollection.  I  know  who  were  rendered  import- 
ant characters,  either  from  the  possession  of  personal 
means,  or  from  the  accident  of  political  situation.  And 
now,  sir,  let  me  ask  the  honourable  member,  what  his  re- 
flections and  belief  will  be  when  he  observes  that  every 
man,  on  whose  vote  the  event  of  the  election  hung,  has 
since  been  distinguished  by  presidential  favour.  I  fear,  sir, 
I  shall  violate  the  decorum  of  parliamentary  proceeding, 
in  the '  mentioning  of  names,  but  I  hope  the  example 
which  has  been  set  me  will  be  admitted  as  an  excuse. 
Mr.  Charles  Pinckney  of  South  Carolina  was  not  a  mem- 
ber of  the  house,  but  he  was  one  of  the  most  active,  effi- 
cient and  successful  promoters  of  the  election  of  the  pre. 
sent  chief  magistrate.  It  was  well  ascertained  that  the 
votes  of  South  Carolina  were  to  turn  the  equal  balance  of 
the  scales.  The  zeal  and  industry  of  Mr.  Pinckney  had 
no  bounds.  The  doubtful  politics  of  South  Carolina  were 
decided,  and  her  votes  cast  into  the  scale  of  Mr.  Jefferson. 


the  Judiciary  Establishment,  193 

Mr.  Pinckney  has  since  been  appointed  minister  plenipo- 
tentiary to  the  court  of  Madrid.  An  appointment  as  high 
and  honourable,  as  any  within  the  gift  of  the  executive. 
I  will  not  deny  that  this  preferment  is  the  reward  of  ta- 
lents and  services,  although,  sir,  I  have  never  yet  heard  of 
the  talents  or  the  services  of  Mr.  Charles  Pinckney.  In 
the  house  of  representatives  I  know  what  was  the  value 
of  Mr.  Claiborae  of  Tennessee.  The  vote  of  a  state  was 
in  his  hands.  Mr.  Claiborne  has  since  been  raised  to  the 
high  dignity  of  governor  of  the  Missisippi  Territory.  I 
know  how  great  and  how  greatly  felt,  was  the  importance 
of  the  vote  of  Mr.  Linn  of  New  Jersey.  The  delegation  of 
the  state  consists  of  five  members.  Two  of  the  delegation 
were  decidedly  for  Mr.  Jefferson;  two  were  decidedly  for 
Mr.  Burr.  Mr.  Linn  was  considered  as  inclining  to  one 
side,  but  still  doubtful.  Both  parties  looked  up  to  him  for 
the  vote  of  New  Jersey.  He  gave  it  to  Mr.  Jefferson,  and 
Mr.  Linn  has  since  had  the  profitable  office  of  supervisor 
of  his  district  conferred  upon  him.  Mr.  Lyon  of  Vermont 
was  in  this  instance  an  important  man.  He  neutralized  the 
vote  of  Vermont.  His  absence  alone  would  have  given  the 
vote  of  a  state  to  Mr.  Burr.  It  was  too  much  to  give  an 
office  to  Mr.  Lyon;  his  character  was  low.  But  Mr.  Lyon's 
son  has  been  handsomely  provided  for  in  one  of  the  exe- 
cutive offices.  I  shall  add  to  the  catalogue  but  the  name 
of  one  more  gentleman,  Mr.  Edward  Livingston,  of  New 
York.  I  knew  well — full  well  I  knew  the  consequence 
of  this  gentleman.  His  means  were  not  limited  to  his  own 
vote — nay,  I  always  considered  more  than  the  vote  of  New 
York  within  his  power.  Mr.  Livingston  has  been  made 
the  attorney  for  the  district  of  New  York — the  road  of 
preferment  has  been  opened  to  him — and  his  brother  has 
been  raised  to  the  distinguished  place  of  minister  plenipo- 
tentiary to  the  French  republic.  This  catalogue  might  be 
swelled  to  a  much  greater  magnitude;  but  I  fear,  Mr, 
Vol.  II  2  B 


194  Mr.  Bayard's  Speech  on 

Chairman,  were  I  to  proceed  further,  it  might  be  sup- 
posed, that  I  myself  harboured  the  uncharitable  suspicions 
of  the  integrity  of  the  chief  magistrate,  and  of  the  purity 
of  the  gentlemen  whom  he  thought  proper  to  promote, 
which  it  is  my  design  alone  to  banish  from  the  mind  of 
the  honourable  member  from  Virginia.  It  would  be  doing 
me  great  injustice  to  suppose,  that  I  have  the  smallest 
desire,  or  have  had  the  remotest  intention  to  tarnish  the 
fame  of  the  present  chief  magistrate,  or  of  any  of  the  ho- 
nourable gentlemen  who  have  been  the  objects  of  his  fa- 
vour, by  the  statement  which  I  have  made;  my  motive  is 
of  an  opposite  nature.  The  late  president  appointed  gentle- 
men to  office,  to  whom  he  owed  no  personal  obligations, 
but  who  only  supported  what  has  been  considered  as  a 
favourite  measure.  This  has  been  assumed  as  a  sufficient 
ground,  not  only  of  suspicion,  but  of  condemnation.  The 
present  executive,  leaving  scarcely  an  exception,  has  ap- 
pointed to  office,  or  has,  by  accident,  indirectly  gratified 
every  man,  who  had  any  distinguished  means  in  the  com- 
petition for  the  presidential  office,  of  deciding  the  election 
in  his  favour.  Yet,  sir,  all  this  furnishes  too  feeble  a  pre- 
sumption to  warrant  me  to  express  a  suspicion  of  the  in- 
tegrity of  a  great  officer,  or  of  the  probity  of  honourable 
men  in  the  discharge  of  the  high  functions  which  they  had 
derived  from  the  confidence  of  their  country.  I  am  sure, 
sir,  in  this  case,  the  honourable  member  from  Virginia  is 
as  exempt  from  any  suspicion  as  myself.  And  I  shall  have 
accomplished  my  whole  object,  if  I  induce  that  honour- 
able member,  and  other  members  of  the  committee,  who 
entertain  his  suspicions  as  to  the  conduct  of  the  late  exe- 
cutive, to  review  the  ground  of  those  suspicions,  and  to 
consider  that  in  a  case  furnishing  much  stronger  ground 
for  the  presumption  of  criminality,  they  have  an  unshaken 
belief,  an  unbroken  confidence  in  the  purity  and  fairness 
of  the  executive  conduct. 


the  Judiciary  Establishment.  195 

I  return  again  to  the  subject  before  the  committee,  from 
the  unpleasant  digression  to  which  I  was  forced  to  submit, 
in  order  to  repel  insinuations  which  were  calculated  to 
have  the  worst  effect,  as  well  abroad  as  within  the  walls  of 
this  house.  I  shall  now  cursorily  advert  to  some  argu- 
ments of  minor  importance,  which  are  supposed  to  have 
some  weight  by  gentlemen  on  the  other  side.  It  is  said 
that  if  the  courts  are  sanctuaries  and  the  judges  cannot  be 
removed  by  law,  it  would  be  in  the  power  of  a  party  to 
create  a  host  of  them  to  live  as  pensioners  on  the  country. 
This  argument  is  predicated  upon  an  extreme  abuse  of 
power,  which  can  never  fairly  be  urged  to  restrain  the  le- 
gitimate exercise  of  it;  as  well  might  it  be  urged,  that  a 
subsequent  congress  had  a  right  to  reduce  the  salary  of  a 
judge,  or  of  the  president,  fixed  by  a  former  congress, 
because  if  the  right  did  not  exist,  one  congress  might  con- 
fer a  salary  of  500,000  or  1,000,000  dollars,  to  the  im- 
poverishment cf  the  country.  It  will  be  time  enough  to 
decide  upon  those  extreme  cases  when  they  occur.  We 
are  told  that  the  doctrine  we  contend  for,  enables  one  le- 
gislature to  derogate  from  the  power  of  another.  That  it 
attributes  to  a  former  a  power  which  it  denies  to  a  subse- 
quent legislature. 

This  is  not  correct.  We  admit  that  this  congress  pos- 
sesses all  the  power  possessed  by  the  last  congress.  That 
congress  had  a  power  to  establish  courts,  so  has  the  pre- 
sent. That  congress  had  not,  nor  did  it  claim  the  power 
to  abolish  the  office  of  a  judge  while  it  was  filled.  Though 
they  thought  five  judges  under  the  new  system  sufficient 
to  constitute  the  supreme  court,  they  did  not  attempt  to 
touch  the  office  of  either  of  the  six  judges.  Though  they 
considered  it  more  convenient  to  have  circuit  judges  in 
Kentucky,  and  Tennessee,  than  district  judges,  they  did 
not  lay  their  hands  upon  the  offices  of  the  district  judges. 
We  therefore  deny  no  power  to  this  congress  which  was 


196  Mr.  Bayard's  Speech  on 

not  denied  to  the  last.  An  honourable  member  from  Vir- 
ginia, (Mr.  Thompson)  seriously  expressed  his  alarm,  lest 
the  principle  we  contended  for  should  introduce  into  the 
country  a  privileged  order  of  men.  The  idea  of  the  gentle- 
man supposes,  that  every  office  not  at  will  establishes  a 
privileged  order.  The  judges  have  their  offices  for  one 
term;  the  president,  the  senators  and  the  members  of  this 
house  for  different  terms.  While  these  terms  endure,  there 
is  a  privilege  to  hold  the  places,  and  no  power  exists  to 
remove.  If  this  be  what  the  gentleman  means  by  a  privi- 
leged order,  and  he  agrees,  that  the  president,  the  senators 
and  the  members  of  this  house  belong  to  privileged  or- 
ders, I  shall  give  myself  no  trouble  to  deny,  that  the 
judges  fall  under  the  same  description;  and  I  believe,  that 
the  gentleman  will  find  it  difficult  to  show,  that  in  any- 
other  manner  they  are  privileged.  I  did  not  suppose,  that 
this  argument  was  so  much  addressed  to  the  understand- 
ings of  gentlemen  upon  this  floor,  as  to  the  prejudices  and 
passions  of  people  out  of  doors. 

It  was  urged  with  some  impression  by  the  honourable 
member  from  Virginia,  to  whom  I  last  referred,  that  the 
position  that  the  office  of  a  judge  might  be  taken  from 
him  by  law,  was  not  a  new  doctrine  That  it  was  estab- 
lished by  the  very  act  now  designed  to  be  repealed,  which 
was  described  in  glaring  language  to  have  inflicted  a  gap- 
ing wound  on  the  constitution,  and  to  have  stained  with 
its  blood  the  pages  of  our  statute  book.  It  shall  be  my 
task,  sir,  to  close  this  gaping  wound,  and  to  wash  from 
the  pages  of  our  statute  book,  the  blood  with  which  they 
were  stained.  It  will  be  an  easy  task  to  show  to  you  the 
constitution  without  a  wound,  and  the  statute  books  with- 
out a  strain. 

It  is,  sir,  the  27th  sect,  of  the  bill  of  the  last  session, 
which  the  honourable  member  considers  as  having  inflict- 
ed the  ghastly  wound  on  the  constitution,  of  which  he  has 


the  Judiciary  Establishment.  197 

so  feelingly  spoken.  That  section  abolishes  the  ancient  cir- 
cuit courts.  But,  sir,  have  we  contended,  or  has  the  gen- 
tleman shown,  that  the  constitution  prohibits  the  abolition 
of  a  court  when  you  do  not  materially  affect  or  in  any  de- 
gree impair  the  independence  of  a  judge.  A  court  is  no- 
thing more  than  a  place  where  a  judge  is  directed  to  dis- 
charge certain  duties.  There  is  no  doubt,  you  may  erect 
a  new  court  and  direct  it  to  be  holden  by  the  judges  of 
the  supreme  or  of  the  district  courts.  And  if  it  should  af- 
terwards be  your  pleasure  to  abolish  that  court,  it  cannot 
be  said,  that  you  destroy  the  offices  of  the  judges  by 
whom  it  was  appointed  that  the  court  should  be  holden. 

Thus  it  was  directed  by  the  original  judicial  law,  that 
a  circuit  court  should  be  holden  at  York  town,  in  the 
district  of  Pennsylvania.  This  court  was  afterwards  abo- 
lished, but  it  was  never  imagined  that  the  office  of  any 
judge  was  affected.  Let  me  suppose,  that  a  state  is  divided 
into  two  districts,  and  district  courts  established  in  each, 
but  that  one  judge  is  appointed  by  law  to  discharge  the 
judicial  duties  in  both  courts.  The  arrangement  is  after- 
wards found  inconvenient,  and  one  of  the  courts  is  abo- 
lished. In  this  case  will  it  be  said,  that  the  office  of  the 
judge  is  destroyed,  or  his  independence  affected? — The 
error,  into  which  gentlemen  have  fallen  on  this  subject, 
has  arisen  from  their  taking  for  granted,  what  they  have 
not  attempted  to  prove,  and  what  cannot  be  supported; 
that  the  office  of  a  judge  and  any  court  in  which  he  offici- 
ates are  the  same  thing.  It  is  most  clear,  that  a  judge  may 
be  authorized  and  directed  to  perform  duties  in  several 
courts,  and  that  the  discharging  him  from  the  performance 
of  duty  in  one  of  those  courts  cannot  be  deemed  an  in- 
fringement of  his  office.  The  case  of  the  late  circuit  courts 
as  plainly  illustrates  the  argument,  and  as  conclusively  de- 
monstrates its  correctness,  as  any  case  which  can  be  put. 
There  were  not  nominally  any  judges  of  the  circuit  court. 


198  Mr.  Bayard's  Speech  on 

The  court  was  directed  to  be  holden  by  the  judges  of  the 
supreme  and  of  the  district  courts.  The  judges  of  these 
two  courts  were  associated  and  directed  to  perform  certain 
duties;  when  associated  and  in  the  performance  of  those 
duties,  they  were  denominated  the  circuit  court.  This 
court  is  abolished;  the  only  consequence  is,  that  the  judges 
of  the  supreme  and  district  courts  are  discharged  from 
the  performance  of  the  joint  duties  which  were  previously 
imposed  upon  them.  But  is  the  office  of  one  judge  of  the 
supreme  or  of  the  district  courts  infringed?  Can  any  judge 
say,  in  consequence  of  the  abolition  of  the  circuit  courts, 
I  no  longer  hold  my  office  during  good  behaviour?  On 
this  point  it  was  further  alleged  by  the  same  honourable 
member,  that  the  law  of  the  last  session  inflicted  another 
wound  on  the  constitution,  by  abolishing  the  district  courts 
of  Kentucky  and  Tennessee.  The  gentleman  was  here  de- 
ceived by  the  same  fallacy  which  misled  him  on  the  sub- 
ject of  the  circuit  courts.  If  he  will  give  himself  the  trouble 
of  carefully  reviewing  the  provisions  of  the  law,  he  will 
discern  the  sedulous  attention  of  the  legislature  to  avoid 
the  infringement  of  the  offices  of  those  judges.  I  believe 
the  gentleman  went  so  far  as  to  charge  us  with  appointing 
by  law  their  judges  to  new  offices. 

The  law  referred  to  establishes  a  circuit,  comprehending 
Kentucky,  Tennessee  and  the  district  of  Ohio.  The  duties 
of  the  court  of  this  circuit  are  directed  to  be  performed 
by  a  circuit  judge  and  the  two  district  judges  of  Kentucky 
and  Tennessee.  Surely  it  is  competent  for  the  legislature 
to  create  a  court,  and  to  direct  that  it  shall  be  holden  by 
any  of  the  existing  judges.  If  the  legislature  had  done  with 
respect  to  all  the  district  judges,  what  they  have  done  with 
respect  to  those  of  Kentucky  and  Tennessee,  I  am  quite 
certain,  that  the  present  objections  would  have  appeared 
entirely  groundless.  Had  they  directed,  that  all  the  circuit 
courts  should  be  held  by  the  respective  judges  within  the 


the  Judiciary  Establishment.  199 

circuits,  gentlemen  would  have  clearly  seen,  that  this  was 
only  an  imposition  of  a  new  duty  and  not  an  appointment 
to  a  new  office. 

It  will  be  recollected,  that  under  the  old  establishment, 
the  district  judges  of  Kentucky  and  Tennessee  were  in- 
vested generally  with  the  powers  of  the  circuit  judges. 
The  ancient  powers  of  those  judges  are  scarcely  varied  by 
the  late  law,  and  the  amount  of  the  change  is,  that  they 
are  directed  to  exercise  those  powers  in  a  court  formerly 
called  a  district,  but  now  a  circuit  court,  and  at  other 
places  than  those  to  which  they  were  formerly  confined. 
But  the  district  judge  nominally  remains,  his  office  both 
nominally  and  substantially  exists,  and  he  holds  it  now  as 
he  did  before,  during  good  behaviour.  I  will  refer  gentle- 
men to  different  provisions  in  the  late  law,  which  will  show 
beyond  denial,  that  the  legislature  carefully  and  pointedly 
avoided  the  act  of  abolishing  the  offices  of  those  judges. 

The  seventh  section  of  the  law  provides  that  the  court 
of  the  sixth  circuit  shall  be  composed  of  a  circuit  judge 
"  and  the  judges  of  the  district  courts  of  Kentucky  and 
Tennessee."  It  is  afterwards  declared  in  the  same  sec* 
tion,  "  that  there  shall  be  appointed  in  the  sixth  circuit, 
a  judge  of  the  United  States  to  be  called  a  circuit  judge, 
who,  together  with  the  district  judge  of  the  courts  of  Ten- 
nessee and  Kentucky,  shall  hold  the  circuit  courts  hereby 
directed  to  be  holden  within  the  same  circuit."  And 
finally,  in  the  same  section  it  is  provided,  u  that  when- 
ever the  office  of  district  judge  in  the  districts  of  Kentucky 
and  Tennessee  respectively  shall  become  vacant,  such  va- 
cancies shall  respectively  be  supplied  by  the  appointment 
of  two  additional  circuit  judges  in  the  said  circuit,  who, 
together  with  the  circuit  judge  first  aforesaid,  shall  com- 
pose the  circuit  courts  of  the  said  circuit."  When  the 
express  language  of  the  law  affirms  the  existence  of  the 
office  and  of  the  officer,  by  providing  for  the  contingency 


200  Mr.  Bayard 's  Speech  on 

of  the  officer  ceasing  to  fill  the  office,  with  what  face  can 
gentlemen  contend  that  the  office  is  abolished?  They  who 
are  not  satisfied  upon  this  point,  I  despair  of  convincing 
upon  any  other. 

Upon  the  main  question,  whether  the  judges  hold  their 
offices  at  the  will  of  the  legislature,  an  argument  of  great 
weight  and  according  to  my  humble  judgment,  of  irre- 
sistible force,  still  remains. 

The  legislative  power  of  the  government  is  not  abso- 
lute but  limited.  If  it  be  doubtful  whether  the  legislature 
can  do  what  the  constitution  does  not  explicitly  authorize; 
yet  there  can  be  no  question,  that  they  cannot  do  what 
the  constitution  expressly  prohibits.  To  maintain,  there- 
fore, the  constitution,  the  judges  are  a  check  upon  the 
legislature.  This  doctrine  I  know  is  denied,  and  it  is 
therefore  incumbent  upon  me  to  show  that  it  is  sound. 

It  was  once  thought  by  gentlemen  who  now  deny  the 
principle,  that  the  safety  of  the  citizen  and  of  the  states, 
rested  upon  the  power  of  the  judges  to  declare  an  uncon- 
stitutional law  void.  How  vain  is  a  paper  restriction  if  it 
confers  neither  power  nor  right.  Of  what  importance  is  it 
to  say,  congress  are  prohibited  from  doing  certain  acts, 
if  no  legitimate  authority  exists  in  the  country  to  decide 
whether  an  act  done  is  a  prohibited  act?  Do  gentlemen 
perceive  the  consequences  which  would  follow  from  es- 
tablishing the  principle,  that  congress  have  the  exclusive 
right  to  decide  upon  their  own  powers?  This  principle 
admitted,  does  any  constitution  remain?  Does  not  the 
power  of  the  legislature  become  absolute  and  omnipotent? 
Can  you  talk  to  them  of  transgressing  their  powers,  when 
no  one  has  a  right  to  judge  of  those  powers  but  them- 
selves? They  do  what  is  not  authorized,  they  do  what  is 
inhibited,  nay  at  every  step  they  trample  the  constitution 
under  foot;  yet  their  acts  are  lawful  and  binding,  and  it 
is  treason  to  resist  them.  How  ill,  sir,  do  the  doctrines 


the  Judiciary  Establishment.  201 

and  professions  of  these  gentlemen  agree.  They  tell  us 
they  are  friendly  to  the  existence  of  the  states;  that  they 
are  the  friends  of  federative,  but  the  enemies  of  a  conso- 
lidated general  government;  and  yet,  sir,  to  accomplish  a 
paltry  object,  they  are  willing  to  settle  a  principle  which, 
beyond  all  doubt,  would  eventually  plant  a  consolidated 
government,  with  unlimited  power,  upon  the  ruins  of  the 
state  governments. 

Nothing  can  be  more  absurd  than  to  contend  that  there 
is  a  practical  restraint  upon  a  political  body  who  are  an- 
swerable to  none  but  themselves  for  the  violation  of  the 
restraint,  and  who  can  derive  from  the  very  act  of  viola- 
tion, undeniable  justification  of  their  conduct. 

If,  Mr.  Chairman,  you  mean  to  have  a  constitution, 
you  must  discover  a  power  to  which  the  acknowledged 
right  is  attached  of  pronouncing  the  invalidity  of  the  acts 
of  the  legislature  which  contravene  the  instrument. 

Does  the  power  reside  in  the  states? — Has  the  legisla- 
ture of  a  state  a  right  to  declare  an  act  of  congress  void? 
This  would  be  erring  upon  the  opposite  extreme.  It  would 
be  placing  the  general  government  at  the  feet  of  the  state 
governments.  It  would  be  allowing  one  member  of  the 
union  to  control  all  the  rest.  It  would  inevitably  lead  to 
civil  dissention  and  a  dissolution  of  the  general  govern- 
ment. Will  it  be  pretended  that  the  state  courts  have  the 
exclusive  right  of  deciding  upon  the  validity  of  our  laws? 

I  admit  they  have  the  right  to  declare  an  act  of  con- 
gress void.  But  this  right  they  enjoy  in  practice,  and  it 
ever  essentially  must  exist  subject  to  the  revision  and 
control  of  the  courts  of  the  United  States.  If  the  state 
courts  definitively  possessed  the  right  of  declaring  the 
invalidity  of  the  laws  of  this  government,  it  would  bring 
us  in  subjection  to  the  states.  The  judges  of  those  courts, 
being  bound  by  the  laws  of  the  state,  if  a  state  declared 
an  act  of  congress  unconstitutional,  the  law  of  the  state 

Vol.  II.  *  5>C 


202  Mr.  Bayard's  Speech  on 

would  oblige  its  courts  to  determine  the  law  invalid.  This 
principle  would  also  destroy  the  uniformity  of  obligation 
Upon  all  the  states,  which  should  attend  every  law  of  this 
government.  If  a  law  were  declared  void  in  one  state,  it 
would  exempt  the  citizens  of  that  state  from  its  operation, 
whilst  obedience  was  yielded  to  it  in  the,  other  states.  I  go 
farther,  and  say,  if  the  state  or  state  courts  had  a  final 
power  of  annulling  the  acts  of  this  government,  its  mise- 
rable and  precarious  existence  would  not  be  worth  the 
trouble  of  a  moment  to  preserve. 

It  would  endure  but  a  short  time,  as  a  subject  of  de- 
rision, and  wasting  into  an  empty  shadow,  would  quickly 
vanish  from  our  sight.  Let  me  now  ask  if  the  power  to 
decide  upon  the  validity  of  our  laws  resides  with  the 
people.  Gentlemen  cannot  deny  this  right  to  the  sovereign 
people.  I  admit  they  possess  it.  But  if  at  the  same  time 
it  does  not  belong  to  the  courts  of  the  United  States, 
where  does  it  lead  the  people?  It  leads  them  to  the  gal- 
lows. Let  us  suppose  that  congress,  forgetful  of  the  li- 
mits of  their  authority,  pass  an  unconstitutional  law. — 
They  lay  a  direct  tax  upon  one  state  and  impose  none 
upon  the  others.  The  people  of  the  state  taxed,  contest 
the  validity  of  the  law.  They  forcibly  resist  its  execution. 
They  are  brought  by  the  executive  authority  before  the 
courts  upon  charges  of  treason.  The  law  is  unconstitu- 
tional,  the  people  have  done  right,   but  the  court  are 
bound  by  the  law,  and  obliged  to  pronounce  upon  them 
the  sentence  which  it  inflicts.  Deny  to  the  courts  of  the 
Uiv.ted  States,  the  power  of  judging  upon  the  unconsti- 
tutionality of  our  laws,  and  it  is  in  vain  to  talk  of  it  exist- 
ing elsewhere.  The  infractors  of  the  laws  are  brought  be- 
fore  these  courts,  and  if  the  courts  are  implicitly  bound, 
the  invalidity  of  the  laws  can  be  no  defence.  There  is, 
howeveV,  Mr.  Chairman,  Still  a  stronger  ground  of  argu- 
ment upon  this  subject.  I  shall  select  one  or  two  cases  te 


the  Judiciary  Establishment.  203 

illustrate  it.  Congress  are  prohibited  from  passing  a  bill 
of  attainder;  it  is  also  declared  in  the  constitution,  that 
"  no  attainder  of  treason  shall  work  corruption  of  blood 
or  forfeiture,  except  during  the  life  of  the  party  attainted." 
Let  us  suppose  that  congress  pass  a  bill  of  attainder,  or 
they  enact  that  any  one  attainted  of  treason  shall  forfeit 
to  the  use  of  the  United  States  all  the  estate  which  he 
held  in  any  lands  or  tenements. 

The  party  attainted  is  seized  and  brought  before  a  fe- 
deral court,  and  an  award  of  execution  passed  against 
him.  He  opens  the  constitution  and  points  to  this  line, 
"  no  bill  of  attainder  or  ex  post  facto  law  shall  be  passed." 
The  attorney  for  the  United  States  reads  the  bill  of 
attainder. 

The  court  are  bound  to  decide,  but  they  have  only  one 
alternative  of  pronouncing  the  law  or  the  constitution  inva- 
lid. It  is  left  to  them  only  to  say  that  the  law  vacates  the 
constitution,  or  the  constitution  avoids  the  law.  So  in  the 
other  case  stated,  the  heir  after  the  death  of  his  ancestor, 
brings  his  ejectment  in  one  of  the  courts  of  the  United 
States  to  recover  his  inheritance.  The  law  by  which  it  is 
confiscated  is  shown.  The  constitution  gave  no  power  to 
pass  such  a  law.  On  the  contrary  it  expressly  denied  it 
to  the  government.  The  title  of  the  heir  is  rested  on  the 
constitution,  the  title  of  the  government  on  the  law.  The 
effect  of  one  destroys  the  effect  of  the  other;  the  court 
must  determine  which  is  effectual. 

There  are  many  other  cases,  Mr.  Chairman,  of  a  simi- 
lar nature,  to  which  I  might  allude.  There  is  the  case  of 
the  privilege  of  habeas  corpus,  which  cannot  be  suspend- 
ed but  in  times  of  rebellion  or  invasion.  Suppose  a  law 
prohibiting  the  issuing  of  the  writ  at  a  moment  of  pro- 
found peace.  If  in  such  case  the  writ  were  demanded  of 
a  court,  could  they  say,  it  is  true  legislature  were  re- 
strained from  passing  the  law,  suspending  the  privilege 


204  Mr.  Bayard^s  Speech  on 

of  this  writ,  at  such  a  time  as  that  which  now  exists,  but 
their  mighty  power  has  broken  the  bonds  of  the  constitu- 
tion, and  lettered  the  authority  of  the  court.  I  am  not, 
sir,  disposed  to  vaunt,  but  standing  on  this  ground,  I 
throw  the  gauntlet  to  any  champion  upon  the  other  side. 
I  call  upon  them  to  maintain,  that  in  a  collision  between 
a  law  and  the  constitution,  the  judges  are  bound  to  sup- 
port the  law,  and  annul  the  constitution.  Can  the  gentle- 
men  relieve  themselves  from  this  dilemma?  Will  they 
say,  though  a  judge  has  no  power  to  pronounce  a  law 
void,  he  has  a  power  to  declare  the  constitution  invalid. 

The  doctrine  for  which  I  am  contending  is  not  only 
clearly  inferable  from  the  plain  language  of  the  constitu- 
te ,  but  by  law  has  been  expressly  declared  and  esta- 
blished in  practice  since  the  existence  of  the  government. 

The  second  section  of  the  third  article  of  the  constitu- 
tion expressly  extends  the  judicial  power  to  all  cases 
arising  under  the  constitution,  the  laws,  &c.  The  provi- 
sion in  the  second  clause  of  the  sixth  article  leaves  no- 
thing" to  doubt.  "  This  constitution  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof, 
£sV.  shail  be  the  supreme  law  of  the  land."  The  consti- 
tution is  tbsolutely  the  supreme  law.  Not  so  of  the  acts 
cf  the  legislature.  Such  only  are  the  laws  of  the  land  as 
are  made  in  pursuance  of  the  constitution. 

I  be  y;  the  indulgence  of  the  committee  one  moment, 
while  1  read  the  following  provision  from  the  25th  section 

the  judicial  act  of  the  \ear  1789:  "  A  final  judgment 
or  decree  in  any  suit  in  the  highest  court  of  law  or  equity 
of  a  sfc  te  in  which  a  decision  in  the  suit  could  be  had, 
where  is  drawn  in  question  the  validity  of  a  treaty  or  sta- 
• /.'  .'?•  an  authority  exercised  under \  the  United  States, 
tht  decision  is  against  their  validity,  &c.  may  be  re- 
exami  -  ;  and  reversed  or  affirmed  in  the  supreme  court 
of  the  United  States  upon  a  writ  of  error."  Thus,  as  early 


the  Judiciary  Establishment.  205 

as  the  year  1789,  among  the  first  acts  of  the  government, 
the  legislature  explicitly  recognised  the  right  of  a  state 
court  to  declare  a  treaty,  a  statute,  and  an  authority  ex- 
ercised under  the  United  States  void,  subject  to  the  re- 
vision of  the  supreme  court  of  the  United  States;  and  it 
has  expressly  given  the  final  power  to  the  supreme  court 
to  affirm  a  judgment  which  is  against  the  validity  either 
of  a  treaty,  statute  or  an  authority  of  the  government. 

I  humbly  trust,  Mr.  Chairman,  that  I  have  given  abun- 
dant proofs  from  the  nature  of  our  government,  from  the 
language  of  the  constitution,  and  from  legislative  acknow- 
ledgment, that  the  judges  of  our  courts  have  the  power 
to  judge  and  determine  upon  the  constitutionality  of  our 
laws. 

Let  me  now  suppose  that  in  our  frame  of  government 
the  judges  are  a  check  upon  the  legislature;  that  the  con- 
stitution is  deposited  in  their  keeping.  Will  you  say  af- 
terwards that  their  existence  depends  upon  the  legisla- 
ture? That  the  body  whom  they  are  to  check  has  the 
power  to  destroy  them?  Will  you  say  that  the  constitu- 
tion may  be  taken  out  of  their  hands,  by  a  power  the 
most  to  be  distrusted,  because  the  only  power  which 
could  violate  it  with  impunity?  Can  any  thing  be  more 
absurd  than  to  admit,  that  the  judges  are  a  check  upon 
the  legislature,  and  yet  to  contend  that  they  exist  at  the 
will  of  the  legislature?  A  check  must  necessarily  imply 
a  power  commensurate  to  its  end.  The  political  body 
designed  to  check  another  must  be  independent  of  it, 
otherwise  there  can  be  no  check. — What  check  can  there 
be,  when  the  power  designed  to  be  checked  can  annihi- 
late the  body  which  is  to  restrain  it? 

I  go  further,  Mr.  Chairman,  and  take  a  stronger  ground. 
I  say,  in  the  nature  of  things,  the  dependence  of  the 
judges  upon  the  legislature,  and  their  right  to  declare  the 
acts  of  the  legislature  void,  are  repugnant,  and  cannot 


206  Mr.  Bayard's  Speech  on 

exist  together. — The  doctrine,  sir,  supposes  two  rights 
— first,  the  right  of  the  legislature  to  destroy  the  office 
of  the  judge,  and  the  right  of  the  judge  to  vacate  the  act 
of  the  legislature.  You  have  a  right  to  abolish  by  a  law, 
the  offices  of  the  judges  of  the  circuit  courts.  They  have 
a  right  to  declare  your  law  void.  It  unavoidably  follows 
in  the  exercise  of  these  rights,  either  that  you  destroy 
their  rights,  or  that  they  destroy  yours.  This  doctrine  is 
not  an  harmless  absurdity,  it  is  a  most  dangerous  heresy. 
It  is  a  doctrine  which  cannot  be  practised  without  pro- 
ducing not  discord  only,  but  bloodshed.  If  you  pass  the 
bill  upon  your  table  the  judges  have  a  constitutional  right 
to  declare  it  void.  I  hope  they  will  have  courage  to  exer- 
cise that  right;  and  if,  sir,  I  am  called  upon  to  take  my 
side,  standing  acquitted  in  my  conscience,  and  before 
my  God,  of  all  motives  but  the  support  of  the  constitution 
of  my  country,  I  shall  not  tremble  at  the  consequences. 

The  constitution  may  have  its  enemies,  but  I  know 
that  it  has  also  its  friends.  I  beg  gentlemen  to  pause  be. 
fore  they  take  this  rash  step.  There  are  many,  very  many 
who  believe,  if  you  strike  this  blow,  you  inflict  a  mortal 
wound  on  the  constitution.  There  are  many  now  willing 
to  spill  their  blood  to  defend  that  constitution.  Are  gen- 
tlemen disposed  to  risk  the  consequences?  Sir,  I  mean 
no  threats — I  have  no  expectation  of  appalling  the  stout 
hearts  of  my  adversaries;  but  if  gentlemen  are  regardless 
of  themselves,  let  them  consider  their  wives  and  children, 
their  neighbours  and  their  friends.  Will  they  risk  civil 
dissention;  will  they  hazard  the  welfare,  will  they  jeopar- 
dize the  peace  of  the  country,  to  save  a  paltry  sum  of  mo- 
ney, less  than  thirty  thousand  dollars? 

Mr.  Chairman,  I  am  confident  that  the  friends  of  this 
measure  are  not  apprised  of  the  nature  of  its  operation, 
nor  sensible  of  the  mischievous  consequences  which  are 
likely  to  attend  it.  Sir,  the  morals  of  your  people,  the 


the  Judiciary  Establishment.  £07 

peace  of  the  country,  the  stability  of  the  government,  rest 
upon  the  maintenance  of  the  independence  of  the  judi- 
ciary. It  is  not  of  half  the  importance  to  England,  that 
the  judges  should  be  independent  of  the  crown,  as  it  is 
with  us,  that  they  should  be  independent  of  the  legisla- 
ture. Am  I  asked,  would  you  render  the  judges  supe- 
rior to  the  legislature?  I  answer,  no,  but  co-ordinate. 
Would  you  render  them  independent  of  the  legislature? 
I  answer,  yes,  independent  of  every  power  on  earth,  while 
they  behaved  themselves  well.  The  essential  interests, 
the  permanent  welfare  of  society,  require  this  indepen- 
dence. Not,  sir,  on  account  of  the  judge;  that  is  a  small 
consideration,  but  on  account  of  those  between  whom  he 
is  to  decide.  You  calculate  on  the  weaknesses  of  human 
nature,  and  you  suffer  the  judge  to  be  dependent  on  one, 
lest  he  should  be  to  those  on  whom  he  depends.  Justice 
does  not  exist  where  partiality  prevails.  A  dependent 
judge  cannot  be  impartial.  Independence  therefore  is  es- 
sential to  the  purity  of  your  judicial  tribunals. 

Let  it  be  remembered,  that  no  power  is  so  sensibly 
felt  with  society,  as  that  of  the  judiciary.  The  life  and 
property  of  every  man  is  liable  to  be  in  the  hands  of  the 
judges.  Is  it  not  our  great  interest  to  place  our  judges 
upon  such  high  ground,  that  no  fear  can  intimidate,  no 
hope  can  seduce  them?  The  present  measure  humbles 
them  in  the  dust,  it  prostrates  them  at  the  feet  of  faction, 
it  renders  them  the  tools  of  every  dominant  party.  It  is 
this  effect  which  I  deprecate,  it  is  this  consequence  which 
I  deeply  deplore.  What  does  reason,  what  does  argument 
avail,  when  party  spirit  presides?  Subject  your  bench  to 
the  influence  of  this  spirit,  and  justice  bids  a  final  adieu 
to  your  tribunals.  We  are  asked,  sir,  if  the  judges  are  to 
be  independent  of  the  people?  The  question  presents  a 
false  and  delusive  view.  We  are  all  the  people.  We  are, 
and  as  long  as  we  enjoy  our  freedom,  we  shall  be  divided 


203  Mr.  Bayard's  Speech  on 

into  parties.  The  true  question  is,  shall  the  judiciary  be 
permanent,  or  fluctuate  with  the  tide  of  public  opinion? 
I  beg,  I  implore  gentlemen,  to  consider  the  magnitude 
and  value  of  the  principle  which  they  are  about  to  anni- 
hilate. If  your  judges  are  independent  of  political  changes, 
they  may  have  their  preferences,  but  they  will  not  enter 
into  the  spirit  of  party.  But  let  their  existence  depend 
upon  the  support  of  the  power  of  a  certain  set  of  men, 
and  they  cannot  be  impartial.  Justice  will  be  trodden 
under  foot.  Your  courts  will  lose  all  public  confidence 
and  respect. 

The  judges  will  be  supported  by  their  partizans,  who 
in  their  turn  will  expect  impunity  for  the  wrongs  and 
violence  they  commit.  The  spirit  of  party  will  be  in- 
flamed to  madness;  and  the  moment  is  not  far  off,  when 
this  fair  country  is  to  be  desolated  by  civil  war. 

Do  not  say,  that  you  render  the  judges  dependent 
only  on  the  people.  You  make  them  dependent  on  your 
president.  This  is  his  measure.  The  same  tide  of  public 
opinion  which  changes  a  president,  will  change  the  ma- 
jorities of  the  branches  of  the  legislature.  The  legislature 
will  be  the  instrument  of  his  ambition,  and  he  will  have 
the  courts  as  the  instruments  of  his  vengeance.  He  uses 
the  legislature  to  remove  the  judges,  that  he  may  appoint 
creatures  of  his  own.  In  effect,  the  powers  of  the  govern- 
ment will  be  concentrated  in  the  hands  of  one  man,  who 
will  dare  to  act  with  more  boldness,  because  he  will  be 
sheltered  from  responsibility.  The  independence  of  the 
judiciary  was  the  felicity  of  our  constitution.  It  was  this 
principle  which  was  to  curb  the  fury  of  party  upon  sud- 
den changes.  The  first  moments  of  power,  gained  by  a 
struggle,  are  the  most  vindictive  and  intemperate.  Raised 
above  the  storm,  it  was  the  juri^cian'  which  was  to  con- 
trol the  fiery  zeal,  and  to  quell  the  fierce  passions  of  a  vic- 
torious faction. 


the  Judiciary  Establishment.  209 

We  are  standing  on  the  brink  of  the  revolutionary  tor- 
rent, which  deluged  in  blood  one  of  the  fairest  countries 
of  Europe. 

France  had  her  national  assembly;  more  numerous  and 
equally  popular  with  our  own.  She  had  her  tribunals  of 
justice  and  her  juries.  But  the  legislature  and  her  courts 
were  but  the  instruments  of  her  destruction.  Acts  of  pro- 
scription and  sentences  of  banishment  and  death  were 
passed  in  the  cabinet  of  a  tyrant. — Prostrate  your  judges 
at  the  feet  of  party,  and  you  break  down  the  mounds 
which  defend  you  from  this  torrent.  I  am  done.  I  should 
have  thanked  my  God  for  greater  power  to  resist  a  mea- 
sure so  destructive  to  the  peace  and  happiness  of  the 
country.  My  feeble  efforts  can  avail  nothing.  But  it  was 
my  duty  to  make  them.  The  meditated  blow  is  mortal, 
and  from  the  moment  it  is  struck,  we  may  bid  a  final 
adieu  to  the  constitution. 


SPEECH  OF  MR.  RANDOLPH 

on  the  judiciary  establishment. 

Mr.  Chairman, 

1  DO  not  rise  for  the  purpose  of  assuming  the  gauntlet 
which  has  been  so  proudly  thrown  down  by  the  Goliath 
of  the  adverse  party: — not  but  that  I  believe,  even  my 
feeble  powers,  armed  with  the  simple  weapons  of  truth — 
a  sling  and  a  stone,  are  capable  of  prostrating  on  the  floor 
that  gigantic  boaster,  armed  cap-a-pie  as  he  is;  but  I  am 
impelled  by  a  desire  to  rescue  from  misrepresentation  the 
arguments  of  my  colleague  (Mr.  Giles),  who  is  absent 
through  indisposition.  That  absence  is  a  subject  of  pecu- 
Vol.  II.  2  D 


210  Mr.  Randolphs  Speech  on 

liar  regret  to  me,  not  only  because  I  could  have  wished 
his  vindication  to  devolve  on  abler  hands,  but  because  he 
has  to-day  lost  the  triumph  which  yesterday  he  could  not 
have  failed  to  enjoy,  that  of  seeing  his  opponent  reduced 
to  the  wretched  expedient  of  perverting  and  mutilating 
his  arguments,  through  inability  to  meet  and  answer 
them.  This  is  the  strongest  proof  that  can  be  given  of 
inadequacy  to  refute  any  position.  I  therefore  leave  to 
the  gentleman  all  the  triumph  he  can  derive  from  a  victory 
over  his  own  arguments;  but  whilst  I  feel  no  disposition 
to  disturb  him  in  that  enjoyment,  I  hope  I  shall  be  per- 
mitted to  correct  some  of  the  mis-statements  which  have 
been  made  of  my  colleague's  observations. 

In  the  view  1  have  taken  of  the  conduct  of  our  prede- 
cessors, in  the  chain  of  whose  measures  the  law  now  pro- 
posed to  be  repealed  formed  an  important  link,  the  funding 
of  the  debt  of  the  United  States,  and  the  assumption  of 
those  of  the  individual  states  were  reprehended.  An  attempt 
is  now  made  to  construe  this  disapprobation  into  a  design 
of  violating  the  public  faith.  But  I  deny,  sir,  that  one 
syllable  has  fallen  from  my  colleague  indicative  of  a  right, 
or  a  disposition  on  his  part,  to  withhold  the  payment  of 
any  public  engagements.  Against  those  destructive  mea- 
sures, it  is  true,  my  colleague  did  raise  his  voice.  Against 
the  fatal  and  absurd  maxim,  that  a  public  debt  is  a  public 
blessing  he  had  indeed  very  earnestly  protested;  but  never, 
sir,  did  a  word  escape  his  lips,  because  no  such  sentiment 
ever  lurked  in  his  heart,  which  could  be  construed  into 
a  declaration  that  the  present  legislature  possessed  the 
same  power  over  the  engagements  of  former  legislatures 
which  they  possessed  over  ordinary  laws;  that  of  modify- 
ing or  abrogating  them  with  the  same  latitude  of  freedom 
which  had  been  exercised  in  their  establishment.  Since 
the  gentleman  betrays  such  peculiar  sensibility  on  the 
subject  of  the  debt,  I  shall  rely  on  his  support,  if  a  mea- 


the  Judiciary  Establishment.  211 

sure  shall  be  brought  forward  for  its  final  and  rapid  ex- 
tinguishment: not  by  a  sponge,  but  by  a  fair  reimburse- 
ment of  one  hundred  cents  for  every  dollar  due. 

With  equal  ease  could  I  demonstrate  that  on  the  other 
topics  introduced  by  that  gentleman — the  Algerine  de- 
predations, the  Indian  wars,  &c.  the  representation  has 
been  equally  unfair.  I  shall  not  dwell  upon  them,  because 
they  are  less  calculated  to  make  on  the  public  mind  the 
unfavourable  impression  that  has  been  attempted  on  the 
subject  of  the  debt.  I  will  therefore  dismiss  them  with 
this  short  and  simple  remark — The  uses  to  which  these 
incidents  were  applied,  and  not  the  events  themselves, 
formed  the  subject  of  my  colleague's  animadversions. 

But  to  the  long  catalogue  of  unpopular  acts  which  have 
deprived  their  authors  of  the  public  confidence,  the  gen- 
tleman tells  us,  he  and  his  friends  were  "  goaded"  by  the 
clamour  of  their  opponents.  He  solemnly  assures  us,  that 
in  the  adoption  of  these  measures  they  clearly  foresaw 
the  downfall  of  their  power;  but  impressed  with  a  con- 
viction that  they  were  essential  to  the  public  good,  and 
disdaining  all  considerations  of  a  personal  nature,  they 
nobly  sacrificed  their  political  existence  on  the  altar  of 
the  general  welfare;  and  we  are  called  upon  now  to  re- 
vere in  them  the  self-immolated  victims  at  the  shrine  of 
patriotism.  These  are,  indeed,  lofty  pretensions;  and  al- 
though I  shall  not  peremptorily  deny  their  sincerity,  I 
may,  in  this  age  of  infidelity,  be  permitted  to  doubt  it; 
for  I  call  upon  the  committee  to  decide  whether,  in  this 
day's  discussion  the  gentleman  has  evinced  that  purity  of 
heart,  or  that  elevation  of  sentiment,  which  would  justify 
me  in  clothing  him  with  the  attributes  of  Curtius  or  of 
the  Decii. 

In  the  wide  range  which  the  gentleman  has  taken,  the 
question  how  far  the  common  law  of  England  is  the  law 
of  the  United  States,  in  their  confederate  capacity,  has 


212  Mr.  Randolph's  Speech  on 

been  brought  forward.  We  are  told  "  that  the  terms  of 
the  common  law  abounds  in  every  page,  and  almost  in 
every  line  of  the  constitution;  that  without  it,  that  instru- 
ment would  be  unintelligible  and  inefficient — that,  there- 
fore, it  attaches  to  the  constitution.  Moreover,  that  it  is 
the  law  of  the  states,  by  the  acknowledged  principle,  that 
colonists  carry  to  their  newly  adopted  country,  so  much 
of  the  law  of  the  parent  state,  as  is  applicable  to  their  new 
condition."  That  the  common  law  is  to  settle  the  mean- 
ing of  common  law  phrases,  kw  will  feel  disposed  to 
deny;  that  when  the  constitution  uses  the  term  "  court," 
it  does  not  mean  "  jury,"  and  that  by  "  jury,"  it  is  not 
intended  to  express  "  court,"  seems  plain  enough  to  any 
capacity.  But  because  the  common  law  is  to  be  resorted 
to  for  an  explanation  of  these  and  similar  terms,  does  it 
follow  that  that  indefinite  and  undefinable  body  of  law  is 
the  irrepealable  law  of  this  land?  The  sense  of  a  most 
important  phrase,  "  direct  tax,"  as  used  in  the  constitu- 
tion, has  been,  it  is  believed,  settled  by  the  acceptation 
of  Adam  Smith;  an  acceptation,  too,  peculiar  to  himself. 
Does  the  Wealth  of  Nations,  therefore,  form  a  part  of  the 
constitution  of  the  United  States?  Will  gentlemen  please 
to  specify  also,  whether  that  common  law  which  they 
have  adopted  for  the  United  States,  be  the  common  law 
as  it  stood  modified  by  statute  in  the  reigns  of  Elizabeth 
and  James  the  first,  prior  to  the  existence  of  the  act  of 
habeas  corpus,  divested  of  all  the  salutary  provisions  af- 
terwards introduced  at  the  revolution;  or  whether  it  be 
the  common  law  of  George  the  second?  Whether  we  are 
to  be  governed  by  the  common  law  of  Sir  Walter  Raleigh 
and  captain  Smith;  or  that  which  was  imported  by  go- 
vernor Oglethorpe;  or  on  which  of  the  intermediate  pe- 
riods they  have  chosen  as  fixing  the  common  law  of  these 
states? 

I  wish,  especially,  to  know,  whether  the  common  law 


the  Judiciary  Establishment.  213 

of  libels  which  attaches  to  this  constitution,  be  the  doc- 
trine laid  down  by  lord  Mansfield,  or  that  which  has  im- 
mortalized Mr.  Fox?  And  whether  the  jurisdiction  thus 
usurped  over  the  press,  in  defiance  of  an  express  emen- 
datory  clause,  which  must  be  construed  to  annul  every 
previous  provision,  if  any  such  there  be,  which  comes 
within  its  purview,  be  an  example  adduced  to  illustrate 
the  position,  which  I  certainly  shall  never  contest,  that 
1  what  the  constitution  does  not  permit  to  be  done  by 
direct  means,  cannot,  constitutionally,  be  indirectly  ef- 
fected.' But  to  reconcile  us  to  this  usurpation,  we  are 
informed,  that  the  principles  of  the  common  law  are  fa- 
vourable only  to  liberty;  that  they  neither  have  been,  nor 
can  be  enlisted  in  the  cause  of  persecution.  If  I  did  not 
misunderstand  the  gentleman,  he  said,  that  no  prosecu- 
tions had  occurred  under  that  law.  He  has  therefore 
never  heard  of  the  case  of  Luther  Baldwin.  I  speak  of  the 
New-Jersey  case.  Nor  that  of  Williams.  Other  instances 
I  learn  from  high  authority  have  taken  place  in  Vermont. 
I  intreat  the  committee  to  pardon  me  for  so  long  detain- 
ing them  in  listening  to  topics  so  irrelative  to  the  main 
question,  and  afford  me  their  attention,  while  I  offer  some 
reasons  in  favour  of  the  expediency  and  constitutionality 
of  the  bill  before  them.  I  have  not  heard  any  arguments 
on  this  occasion  more  satisfactory  to  me  than  those  urged 
at  the  time  when  the  law  was  passed,  in  favour  of  the  ex- 
pediency of  the  measure.  I  have  waited  in  the  expecta- 
tion, that  gentlemen  would  endeavour  to  prove,  that  the 
former  judges,  under  a  different  arrangement,  would  be 
inadequate  to  the  duty  of  holding  the  circuit  courts.  A 
belief  that  every  real  objection  to  the  former  system 
might  have  been  obviated  by  some  modification  of  this 
kind,  induced  me  to  dissent  to  the  passage  of  the  law  in 
the  first  instance.  That  dissent  was  recorded  on  the  jour- 
nals of  the  house — and  so  many  members  oi  the  commit- 


214  Mr.  Randolph' 's  Speech  on 

tee  stood  in  the  same  predicament  with  me,  that  if  a  sense 
of  duty  to  myself  and  the  house  were  insufficient  to  deter 
me,  that  fact  alone,  of  which  the  gentleman  was  himself  a 
witness,  ought  to  have  repressed  the  aspersions  which  he 
has  cast  upon  a  Great  portion  of  the  committee,  whom  he 
has  represented  as  the  mere  puppets  of  executive  influ- 
ence, acting  upon  no  convictions  of  their  own,  but  played 
off  by  an  invisible,  although  not  unknown  hand.  Yes,  sir, 
objections  to  this  system  are  treated  as  if  altogether  un- 
heard of  until  of  late,  although  a  very  formidable  mino- 
rity have  uniformly  been  found  opposed  to  it.  Neverthe- 
less, this  is  altogether  the  work  of  the  executive,  who  by 
the  slightest  expression  of  disapprobation  could  yet  arrest 
the  measure,  and  save  the  constitution.  I  am  unhackney- 
ed in  the  ways  of  majorities;  my  experience  has  been 
very  limited;  but  am  I  to  conclude  from  the  observations 
which  have  passed,  that  it  is  the  common  law;  the  uniform 
practice  heretofore  of  this  government,  for  congress  to  be 
the  mere  instrument  in  effecting  the  executive  will — a 
chamber  for  registering  presidential  edicts.  It  is  said,  that 
the  document  on  this  subject  is  one  which  the  executive 
has  no  right  to  lay  before  the  house.  When  did  the  right 
of  the  president  to  recommend  modifications  of  the  judi- 
ciary system  cease?  Such  recommendations  have  hereto- 
fore formed  a  prominent  feature  in  two  successive  execu- 
Tive  communications,  made  at  the  commencement  of  two 
successive  sessions  of  congress.  Did  the  right  of  the 
executive  to  recommend,  and  of  congress  to  act,  cease  at 
the  precise  period  when  the  faultless  model  of  the  last 
session  was  perfected?  The  gentleman  from  Delaware 
has  taken  such  a  wide  range,  and  thrown  out  such  a  vast 
deal  of  matter,  that,  in  attempting  to  reply  to  some  of  his 
observations,  I  am  necessarily  led  into  many  desultory 
remarks.  The  present  system,  it  seems,  was  necessary 
from  the  inevitable  corporeal  infirmity  of  the  judges:  the 


the  Judiciary  Establishment.  215 

unavoidable  effect  of  the  tedious  probation  indispensable 
to  that  venerable  station. 

Let  us  compare  the  former  practice  with  the  present 
theory.  The  judge  of  one  of  the  two  districts  into  which 
Virginia  had  been  divided,  was  contemporary  with  me 
at  school.  He  is  certainly  neither  an  itifirm  nor  a  hoary 
sage.  His  associate  from  Maryland  was  an  active  and 
gallant  partizan  at  the  siege  of  Pensacola  during  our  re- 
volutionary war;  not  contending,  however,  under  those 
banners  where  you  would  have  expected  to  find  a  man, 
who  occupies  so  dignified  a  station  under  the  govern- 
ment of  the  United  Slates;  but  fighting  the  battles  of  his 
king:  bravely,  yet  alas!  unsuccessfully  contending  against 
the  spirit  of  insubordination  and  jacobinism,  which  threa- 
tens to  sweep  from  the  earth  every  thing  valuable  to  man, 
and  against  which  the  gentleman  from  Delaware  is  also 
eager  to  enter  the  lists.  Upon  a  subject  connected  with 
those  appointments,  we  have  been  told  that  the  executive 
had  a  right  to  presume  a  vacancy  in  all  cases  where  a 
judge  of  an  inferior  tribunal  had  been  appointed  to  a  seat 
on  the  bench  of  a  superior  court;  and  that  the  new  office 
vests,  not  at  the  time  when  the  judge  is  notified  of  his 
promotion,  nor  at  the  date  of  his  acceptance,  but  from 
the  date  of  his  commission.  I  certainly  do  not  mean  to 
contend  with  the  gentleman  from  Delaware  on  points  of 
law,  yet  I  will  put  a  question  to  him.  It  will  readily  be 
conceded,  that  the  vacating  of  the  former  office  is  the 
condition  of  the  acceptance  of  the  latter.  Suppose  a  judge 
after  the  date  of  his  new  commission,  but  prior  to  his 
notification  or  acceptance  thereof,  performs  a  judicial  act. 
Is  that  act  to  be,  therefore,  invalid?  Can  his  successor, 
on  receipt  of  his  commission,  exercise  the  functions  of 
judge,  prior  to  the  resignation  of  the  former  incumbent? 
Can  any  office  be  at  the  same  time  in  the  possession  of 
two  persons?  Does  not  this  doctrine  imply  a  right  on  the 


216  Mr.  Randolph? s  Speech  on 

part  of  government  to  anticipate  the  resignation  of  any 
judge,  and  compel  his  assent  to  an  act  vacating  his  office. 
The  new  commission  under  these  circumstances  either 
did,  or  did  not  give  a  claim  to  its  possessor  in  the  office. 
If  it  did  not,  the  executive  had  the  right  to  withhold  it. 
If  it  did,  a  judge  may  be  expelled  from  office,  without 
his  consent,  and  provided  at  any  time  afterwards  he  shall 
acquiesce,  the  expulsion  is  legal.— Besides,  by  what  au- 
thority does  a  member  of  this  house  hold  his  seat  under 
an  election  previous  to  his  appointment  of  district  judge 
of  North  Carolina?  For  this  office  a  commission  was  is- 
sued, as  I  am  credibly  informed.  But,  sir,  we  shall  be 
told,  that  the  manner  in  which  this  affair  was  transacted 
ought  not  to  affect  our  decision.  It  is  with  me  an  irre- 
fragable proof  of  the  inexpediency  of  the  law,  and  of 
course  conclusive  evidence  of  the  expediency  of  its  repeal. 
But  the  constitution  is  said  to  forbid  it.  And  here  per- 
mit me  to  express  my  satisfaction,  that  gentlemen  have 
agreed  to  construe  the  constitution  by  the  rules  of  com- 
mon sense.  This  mode  is  better  adapted  to  the  capacity 
of  unprofessional  men,  and  will  preclude  the  gentleman 
from  Delaware,  from  arrogating  to  himself  and  half  a  do- 
zen other  characters  in  this  committee,  the  sole  right  of 
expounding  that  instrument,  as  he  has  done  in  the  case 
of  the  law  which  is  proposed  to  be  repealed.  Indeed  as 
one  of  those  who  would  be  unwilling  to  devolve  upon 
that  gentleman  the  high  priesthood  of  the  constitution, 
and  patiently  to  submit  to  technical  expositions  which  I 
might  not  even  comprehend,  I  am  peculiarly  pleased  that 
we  are  invited  to  exercise  our  understandings,  in  the  con- 
struction of  this  instrument.  A  precedent,  said  to  be 
quite  analogous,  has  been  adduced:  the  decision  of  the 
judges  of  Virginia  on  a  similar  question.  A  pamphlet 
entitled  f  a  friend  to  the  constitution'  has  been  quoted. 
Public  opinion  informs  me,  that  this  is  the  production  of 


the  Judiciary  Establishment.  217 

the  pen  of  a  gentleman  who  holds  a  pre-eminent  station 
on  the  federal  bench.  Am  I  so  to  consider  it?  If  this  be 
understood,  it  is  entitled  to  high  respect;  the  facts  at 
least  must  be  unquestionable. 

The  courts  of  Virginia  consisted  of  one  general  court 
of  common  law,  a  court  of  chancery,  composed  of  three 
judges,  and  a  court  of  admiralty.  The  judges  of  all  those 
courts  held  their  offices  during  good  behaviour,  and  did, 
by  law,  constitute  a  court  of  appeals.  The  general  court 
becoming  manifestly  incompetent  to  the  extensive  duties 
assigned  to  it,  a  system  of  circuit  courts  was  adopted  in 
1787,  and  the  judges  of  the  court  of  appeals  were  appoint- 
ed to  ride  the  circuits.  This  law  the  judges  pronounced 
unconstitutional,  and  agreed,  unanimously,  to  remonstrate 
against  it.  After  lamenting  the  necessity  of  deciding  be- 
tween the  constitution  and  the  law,  and  that  in  a  case*  per- 
sonally interesting  to  themselves,  they  said,  "  that  on 
their  view  of  the  subject  the  following  alternatives  pre- 
sented themselves;  either  to  decide  the  question  or  to 
resign  their  offices.  The  latter  would  have  been  their 
choice  if  they  could  have  considered  those  questions  as 
affecting  their  individual  interests  only." — Yes,  sir,  and 
such  was  the  character  of  those  men,  that  none  doubted 
the  sincerity  of  their  declaration.  They  then  go  on  to  de- 
clare, that  the  legislature  have  no  right  even  to  increase 
their  duties,  by  a  modification  of  the  courts;  a  privilege 
for  which  no  one  here  has  contended.  In  respect  much 
more,  it  is  believed,  to  the  characters  of  those  venerable 
men,  than  to  this  opinion,  the  legislature  did  .not  enforce 
the  new  regulations.  The  law  was  new  modelled,  a  sepay 
rate  court  of  appeals  established,  the  judges  of  which 
were  to  be  elected  by  joint  ballot,  in  conformity  with  the 
constitution.  New  members  were  added  to  the  general 
court,  and  it  was  declared  to  be  their  duty  to  ride  the  cir- 
cuits. The  judges  of  chancery,  of  the  general  court,  and 

Vol.  II.  2E 


218  Mr.  Randolph *s  Speech  on 

court  of  admiralty,  who  had  not  been  elected,  in  pursu- 
ance of  the  constitution,  judges  of  appeals,  but  on  whom 
that  duty  was  imposed  by  law,  were  relieved  from  the 
further  discharge  of  it.  In  this  arrangement,  several  of  the 
judges  were  understood  to  have  been  consulted;  and  on 
the  ballot  the  six  senior  judges  were  elected,  five  into  the 
court  of  appeal,  and  the  sixth  into  the  court  of  chancery. 
Nevertheless  against  this  law  the  judges  also  protested, 
as  an  invasion  of  the  judiciary  establishment,  denying  the 
right  of  the  legislature  to  deprive  them  of  office,  in  any 
other  mode  than  is  pointed  out  in  the  constitution,  I 
mean  by  impeachment;  but  to  make  way  for  the  present 
salutary  system,  they  do,  in  their  mere  free  will,  resign 
their  appointments  as  judges  of  the  court  of  appeals,  and, 
as  they  do  not  hold  any  separate  commission  for  that  office^ 
which  might  be  returned,  they  order  the  same  to  be  re- 
corded. 

Now,  sir,  I  shall  not  contend,  as  I  certainly  might,  and 
with  great  reason,  that  the  practice  of  Virginia  must  be 
considered  as  settling  the  constitutional  doctrine  of  that 
state,  (the  opinions  of  individuals,  however  enlightened 
and  respectable,  notwithstanding,)  under  which  practice, 
two  chancellors  have  been  removed  from  their  office  of 
judges  in  chancery,  as  well  as  of  appeals,  and  the  judges 
of  the  general  court  and  court  of  admiralty  also,  divested 
of  their  seats  on  the  bench  of  the  court  of  appeals,  although 
a  court  of  appeals  was  supposed  necessary,  and  was  re- 
tained in  the  new  system;  nor  shall  I  insist  on  the  disparity 
between  the*stability  of  the  judicial  branch  of  government 
in  the  eye  of  the  constitution  of  Virginia,  and  that  of  the 
United  States  respectively,  as  surely  I  might.  For  the 
constitution  of  Virginia  has  a  retrospect  to  pre-existing 
judicial  establishments, — which  experience  had  tested, 
which  weie  allowed  to  be  beneficial,  and  which  it  is  con- 
tended were  sanctioned  by  it.  That  of  the  United  States, 


the  Judiciary  Establishment.  219 

formed  when  the  confederacy  had  no  such  establishments, 
is  altogether  prospective  in  its  operation.  It  looks  forward 
to  such  establishments,  as  things  to  be  created,  from  time 
to  time:  in  other  words,  to  be  modified  as  experience 
should  point  out  their  defects.  But,  sir,  I  shall  not  dilate 
upon  these  forcible  topics;  I  will  concede,  for  argument's 
sake,  that  the  doctrine  contended  for  by  the  judges  of 
Virginia  was  the  true  constitutional  doctrine,  and  I  will 
argue  from  it  to  the  bill  on  your  table,  first  applying  it  to 
the  act  on  which  it  is  intended  to  operate.  Previous  to  the 
existence  of  that  act,  the  duty  of  the  judge  of  the  circuit 
court  was  performed  by  the  judges  of  the  supreme  court, 
who  also  constituted  a  court  of  appeals,  and  by  the  judges 
of  the  respective  districts.  These  were  judges  of  the  cir- 
cuit court  to  every  intent  and  purpose,  as  completely  as 
the  judges  of  Virginia  were  judges  of  appeals.  By  the 
operation  of  the  law  of  the  last  session,  they  have  been 
divested  of  this  office  and  other  persons  have  been  ap- 
pointed to  it.  Much  stress  is  laid,  much  ingenuity  exer- 
cised, to  raise  metaphysical  distinctions  between  the  court 
and  the  office.  I  will  grant,  all  that  gentlemen  contend  for, 
that  there  is  a  wide  distinction;  but  does  that  affect  the 
case?  Does  it  alter  the  fact?  The  late  circuit  courts  were 
not  only  abolished,  but  the  persons  holding  the  office  of 
judge  of  those  courts  no  longer  hold  it;  they  have  neither 
been  impeached,  nor  have  they  resigned.  They  have  not 
even  accepted  any  new  appointment  inconsistent  with  it, 
and  by  which  it  became  vacant.  The  function  of  judge 
of  the  circuit  court  does  or  does  not  constitute  an  office. 
If  it  does,  then  the  judges  of  the  supreme  and  district 
courts  have  been  deprived  of  their  offices;  (the  discharge 
of  whose  duties,  be  it  remembered,  constitutes  no  small 
part  of  the  consideration  for  which  they  receive  their  sala- 
ries:) If  it  does  not,  then  the  circuit  judges  are  not  now 
about  to  be  deprived  of  their  offices.  On  the  passage  of 


220  Mr.  Randolph's  Speech  on 

the  law  of  the  last  session,  did  we  hear  any  protest  against 
its  unconstitutionality  from  the  supreme  or  district  courts? 
Of  any  resignations  of  the  office  of  judge  of  the  circuit 
court,  in  order  that  a  salutary  system  might  take  effect? 
And  yet,  sir,  is  not  that  office  as  distinct  from  that  of 
supreme  or  district  judge,  as  the  office  of  judge  of  ap- 
peals in  Virginia  is  from  that  of  judge  of  the  general 
court,  chancery,  or  admiralty?  Are  not  the  jurisdictions 
of  those  courts  separate  and  distinct?  Neither  of  them 
having  original  jurisdiction  of  the  same  subjects;  and  an 
appeal  lying  from  the  inferior  to  the  superior  tribunal,  as 
in  Virginia,  although  the  officers  of  those  tribunals  may 
be  the  same  individuals.  What  then  is  the  difference  be- 
tween taking  the  office  of  appellate  jurisdiction  from  the 
judge  who  possessed  original  jurisdiction,  or  taking  the 
office  of  original  jurisdiction  from  the  appellate  judge? 
How  is  the  independence  of  the  judge  more  affected  by 
the  one  act  than  by  the  other? 

To  prove  the  unconstitutionality  of  this  bill  then,  by  a 
recurrence  to  the  doctrine  of  the  judiciary  of  Virginia,  is 
to  prove  the  unconstitutionality  of  the  law  of  which  it  will 
effect  the  repeal:  And  no  arguments  have  been,  or,  in  my 
opinion,  can  be  adduced  to  prove  the  unconstitutionality 
of  the  one,  which  will  not  equally  apply  to  the  other. 
No,  sir,  gentlemen  are  precluded  by  their  own  act  from 
assuming  the  ground  of  the  judges  of  Virginia;  they  are 
obliged  to  concede  that  we  have  the  power,  because  they 
have  already  exercised  it,  of  modifying  the  courts,  and 
are  they  not  to  concede  the  question?  They  tell  you  that 
this,  however,  in  order  to  be  constitutional  must  be  a 
"  bona  fide"  modification;  but  here  the  onus  probandi 
lies  upon  them — It  rests  upon  them  to  prove  that  this  is 
a  mala-fide  modification. 

Gentlemen  have  not,  they  cannot  meet  the  distinction 
between  removing  the  judge  from  office  for  the  purpose 


the  Judiciary  Establishment.  221 

of  putting  in  another  person,  and  abolishing  an  office  be- 
cause it  is  useless  or  oppressive.  Suppose  the  collectors 
of  your  taxes  held  their  offices  by  the  tenure  of  good  be- 
haviour, would  the  abolition  of  your  taxes  have  been  an 
infraction  of  that  tenure;  or  would  you  be  bound  to  retain 
them  lest  it  should  infringe  a  private  right?  If  the  repeal 
of  the  taxes  would  be  an  infringement  of  that  tenure,  and 
therefore  unconstitutional,  could  you  ring  all  the  changes 
upon  the  several  duties  on  stamps,  carriages,  stills,  &c. 
and  because  you  had  retained  the  man,  and  any  one  of 
these  offices,  without  dismissing  his  emoluments,  abolish 
the  others?  Would  not  this  be  to  impair  the  tenure  of  the 
office  which  was  abolished,  or  to  which  another  officer 
might  have  been  appointed  by  a  new  regulation?  Have 
not  the  judges  in  the  same  manner  been  deprived  of  one 
of  their  offices,  and  is  not  the  tenure  as  completely  im- 
paired thereby  as  if  the  office  had  been  taken  away  also? 
Although  it  will  be  granted  that  the  tenant  is  not  much 
affected,  since  with  one  office  he  has  the  salary  formerly 
attached  to  both. 

I  agree  that  the  constitution  is  a  limited  grant  of  power, 
and  that  none  of  its  general  phrases  are  to  be  construed 
into  an  extension  of  that  grant.  I  am  free  to  declare,  that 
if  the  extent  of  this  bill  is  to  get  rid  of  the  judges,  it  is 
a  perversion  of  your  power  to  a  base  purpose;  it  is  an  un- 
constitutional act.  If  on  the  contrary  it  aims  at  the  dis- 
placing one  set  of  men  from  whom  you  differ  in  political 
opinion,  with  a  view  to  introduce  others,  but  for  the  ge- 
neral good,  by  abolishing  useless  offices,  it  is  a  constitu- 
tional act.  The  quo  animo  determines  the  nature  of  this 
act,  as  it  determines  the  innocence  or  guilt  of  other  acts. 
But  we  are  told  that  this  is  to  declare  the  judiciary,  which 
the  constitution  has  attempted  to  fortify  against  the  other 
branches  of  government,  dependent  on  the  will  of  the 
legislature,  whose  discretion  alone  is  to  limit  their  en 


222  Mr.  Randolph's  Speech  on 

croachments.  Whilst  I  contend  that  the  legislature  pos- 
sesses this  discretion,  I  am  sensible  of  the  delicacy  with 
which  it  is  to  be  used.  It  is  like  the  power  of  impeach- 
ment, or  of  declaring  war,  to  be  exercised  under  a  high 
responsibility.  But  the  power  is  denied — for  say  they, 
its  exercise  will  enable  flagitious  men  to  overturn  the 
judiciary,  in  order  to  put  their  creatures  into  office,  and 
to  wreak  their  vengeance  on  those  who  have  become  ob- 
noxious by  their  merit;  and  yet,  the  gentleman  expressly 
says,  that  arguments  drawn  from  a  supposition  of  extreme 
political  depravity  prove  nothing;  that  every  government 
pre-supposes  a  certain  degree  of  honesty  in  its  rulers,  and 
that  to  argue  from  extreme  cases  is  totally  inadmissible. 
Nevertheless  the  whole  of  his  argument  is  founded  on  the 
supposition  of  a  total  want  of  principle  in  the  legislature 
and  executive.  In  other  words,  arguments  drawn  from 
this  hypothesis  are  irresistible  when  urged  in  favour  of 
that  gentleman's  opinion;  but  when  they  militate  against 
him,  they  are  totally  inapplicable.  It  is  said  that  the  bill 
on  your  table  cannot,  constitutionally,  be  passed,  because 
unprincipled  men  will  pervert  the  power  to  the  basest 
purposes;  that,  hereafter,  we  may  expect  a  revolution  on 
the  bench  of  justice,  on  every  change  of  party; — and  the 
politics  of  the  litigants,  not  the  merits  of  the  case,  are  to 
govern  their  decisions.  The  judiciary  is  declared  to  be 
the  guardian  of  the  constitution  against  infraction,  and  the 
protection  of  the  citizens  as  well  against  legislative  as 
executive  oppression.  Hence  the  necessity  of  an  equal 
independence  of  both.  For  it  is  declared  to  be  an  ab- 
surdity, that  we  should  possess  the  power  of  controlling 
a  department  of  government  which  has  the  right  of  check- 
ing us;  since,  thereby,  that  check  may  be  either  impaired 
or  annihilated.  This  is  a  new  doctrine  of  check  and  ba- 
lance, according  to  which  the  constitution  has  unwisely 
given  to  an  infant  legislature  the  power  of  impeaching 


the  Judiciary  Establishment.  223 

their  guardians,  the  judges.  Apply  this  theory  to  the  re- 
ciprocal control   of  the  two  branches  of  the  legislature 
over  each  other  and  the  executive,  and  of  the  executive 
over  them.   Sir,  this  law,  says  the  gentleman,  can  not  be 
passed,  because  the  character  of  the  bench  is  to  be  given 
to  it  by  the  legislature,  to  the  entire  prostration  of  its  in- 
dependence and  impartiality.  It  will  be  conceded,  that 
measures,  such  as  have  been  pourtrayed,  will  never  be 
taken,  unless  the  sentiment  of  the  ruling  party  is  ready 
to  support  them.  Although  gentlemen  contend  that  the 
office  of  judge  cannot  be  abolished,   they  are  not  hardy 
enough  to  deny  that  it  may  be  created.  Where  then,  sir, 
is  the  check,  supposing  such  a  state  of  things  as  the  gen- 
tleman has  imagined,  (and  which  he  has  also  declared 
cannot  be   conceived)  which   shall   prevent  unprincipled 
men  from   effecting  the  same   object   by  increasing  the 
number  of  judges,  so  as  to  over  rule,  by  their  creatures, 
the  decisions  of  your  courts?  Would  not  public  opinion 
be  as  ready  to  sanction  the  one  as  the  other  of  these  de- 
testable acts?  Would  not  the  same  evil  which  has  excited 
such  apprehension  in  the   minds  of  gentlemen  be  thus 
effected  by  means  even  more  injurious  than  those  which 
they  have  specified?  Without  any  breach  of  the  constitu- 
tion an  unprincipled  faction  may  effect  the  end  which  is 
so  much  apprehended  from   the  measure   now  contem- 
plated to  be  adopted.   I  might  add,  that  when  the  public 
sentiment  becomes  thus  corrupt,  the  ties  of  any  constitu- 
tion will  be   found   too   feeble  to   control  the   vengeful 
ambition  of  a  triumphant  faction.   The  rejection  of  this 
bill  does  not  secure  the  point  which  has  furnished  matter 
for  so  much  declamation.   Its  friends  are  represented  as 
grasping  at  power  not  devolved  upon  them  by  the  con- 
stitution, which,  hereafter,  is  to  be  made  the  instrument 
of  destroying  every  judicial  office,  for  the  purpose  of  re- 
viving them  and  filling  the  places  with  their  partizans.  I 


224  Mr.  Randolph's  Speech  on 

have  long  been  in  the  habit  of  attending  to  the  arguments 
of  the  gentleman  from  Delaware,  and  I  have  generally 
found  in  their  converse  a  ready  touchstone,  the  test  of 
which  they  are  rarely  calculated  to  withstand.  If  you  are 
precluded  from  passing  this  law,  lest  depraved  men  make 
it  a  precedent  to  destroy  the  independence  of  your  judi- 
ciary, do  you  not  concede  that  a  desperate  faction,  finding 
themselves  about  to  be  dismissed  from  the  confidence  of 
their  country,  may  pervert  the  power  of  erecting  courts, 
to  provide,  to  any  extent,  for  their  adherents  and  them- 
selves? And  that,  however  flagrant  that  abuse  of  power, 
it  is  remediless  and  must  be  submitted  to.   Will  not  the 
history  of  all  governments  warrant  the  assertion,  that  the 
creation  of  new  and  unnecessary  offices,  as  a  provision  for 
political  partizans,  is  an  evil  more  to  be  dreaded  than  the 
abolition  of  useless  ones?  Is  not  an  abuse  of  power  more 
to  be  dreaded  from  those  who  have  lost  the  public  confi- 
dence, than  from  those  whose  interest  it  will  be  to  culti- 
vate and  retain  it?  And  does  not  the  doctrine  of  our 
opponents  prove  that  at  every  change  of  administration 
the  number  of  your  judges  are  probably  to  be  doubled? 
Does  it  not  involve  the  absurdity  that,  in  spite  of  all  con- 
stitutional prohibitions,  congress  may  exercise  the  power 
of  creating  an  indefinite  number  of  placemen,  who  are  to 
be  maintained  through  life,  at  the  expense  of  the  com- 
munity? But  when  these  cases  are  cited,  you  are  gravely 
told  that  they  suppose  a  degree  of  political  depravity 
which  puts  an  end  to  all  argument.  Here,  sir,  permit  me 
to  state  an  important  difference  of  opinion  between  the 
two  sides  of  this  house.  We  are  accused  of  an  ambitious 
usurpation  of  power — of  a  design  to  destroy  a  great  de- 
partment of  government,  because  it  thwarts  our  v  iews, 
and  of  a  lawless  thirst  of  self-aggrandizement  which  no 
consideration  can  restrain.    Let  us  not  be  amused   by 
words.  Let  us  attend  to  facts;  for  facts  will  show  who 


the  Judiciary  Establishment.  225 

are  contending  for  unlimited,  and  who  for  limited  au- 
thority. The  opponents  of  this  bill  contend  that  they  did 
possess  the  power  of  creating  offices  to  an  indefinite 
amount,  which,  when  created,  were  beyond  the  control  of 
the  succeeding  legislature.  They  of  course  contend  for 
the  existence  of  such  a  power  in  the  present  legislature, 
for  whose  exercise  there  is  no  security  but  their  self- 
respect.  In  other  words,  that  if  the  present  majority 
should  incur  the  suspicion  of  the  people,  they  may,  as 
soon  as  there  is  any  indication  of  their  having  forfeited 
the  public  confidence,  on  the  signal  of  their  dismission 
from  their  present  stations,  make  ample  and  irrepealable 
provision  for  themselves  and  their  adherents,  by  the  crea- 
tion of  an  adequate  number  of  judicial  offices.  Now,  sir, 
this  is  a  power  which  we  reject,  although  it  is  insisted 
that  we  possess  it.  We  deny  that  such  an  authority  does 
exist  in  us.  We  assert  that  we  are  not  clothed  with  the 
tremendous  power  of  erecting,  in  defiance  of  the  whole 
spirit  and  express  letter  of  the  constitution,  a  vast  judicial 
aristocracy  over  the  heads  of  our  fellow-citizens,  on  whose 
labour  it  is  to  prey.  Who  then  are,  in  reality,  the  advo- 
cates of  a  limited  authority,  and  who  are  the  champions 
of  a  dangerous  and  uncontrollable  power?  In  my  estima- 
tion the  wisest  prayer  which  ever  was  composed,  is  that 
which  deprecates  the  being  led  into  temptation.  I  have 
no  wish  to  be  exposed  myself,  nor  to  see  my  friends  ex- 
posed to  the  dangerous  allurements  which  the  adverse 
doctrine  holds  out.  Do  gentlemen  themselves  think  that 
the  persons  whom  I  see  around  me  ought  to  be  trusted 
with  such  powers?  Figure  to  yourselves  a  set  of  men 
whose  incapacity  or  want  of  principle  have  brought  on 
them  the  odium  of  their  country,  receiving  in  the  month 
of  December,  the  solemn  warning  that  on  the  fourth  of 
March  following,  they  are  to  be  dismissed  from  the  helm 
of  government — establish  the  doctrine  now  contended  for, 
Vol.  II.  2F 


226  Mr.  Randolph's  Speech  on 

and  what  may  you  not  expect?  Yes,  sir,  the  doctrine  ad- 
vanced by  our  opponents  is  that  of  usurpation  and  ambi- 
tion. It  denies  the  existence  of  one  power  by  establishing 
another,  infinitely  more  dangerous — and  this  you  are  told 
is  to  protect,  through  the  organ  of  an  independent  judici- 
ary, the  vanquished  party  from  the  persecution  of  their 
antagonists,  although  it  has  been  shown  that  by  increas- 
ing the  number  of  judges  any  tone  whatever  may  be 
given  to  the  bench. 

The  theory  for  which  gentlemen  contend  seems  to  me 
far-fetched  and  overstrained.  A  mighty  enginery  is  set  in 
motion,  which  to  all  good  purposes  is  ineffectual  although 
formidable  in  the  perpetration  of  mischief.  If  however  the 
people  should  be  of  a  different  opinion,  I  trust  that  at  the 
next  election  they  will  apply  the  constitutional  corrective. 
That  is  the  true  check,  every  other  check  is  at  variance 
with  the  principle  that  a  free  people  are  capable  of  self- 
government. 

But,  sir,  if  you  pass  the  law,  the  judges  are  to  put  their 
veto  upon  it,  by  declaring  it  unconstitutional.  Here  is  a 
new  power  of  a  dangerous  and  uncontrollable  nature  con- 
tended for.  The  decision  of  a  constitutional  question  must 
rest  somewhere.  Shall  it  be  confided  to  men  immediately 
responsible  to  the  people,  or  to  those  who  are  irresponsi- 
ble; lor  the  responsibility  by  impeachment  is  little  else 
than  a  name.  From  whom  is  a  corrupt  decision  most  to 
be  feared?  To  me  it  appears  that  the  power  which  has  the 
right  of  passing  judgment,  widiout  appeal,  on  the  validity 
of  your  laws  is  your  sovereign:  but  an  extreme  case  is 
put;  a  bill  of  attainder  is  passed:  are  the  judges  to  sup- 
port the  constitution  or  the  law?  Shall  they  obey  God  or 
mammon?  Yet  you  cannot  argue  from  such  cases.  But, 
sir,  are  we  not  as  deeply  interested  in  the  true  exposition 
of  the  constitution  as  the  judges  can  be?  With  all  defer- 
ence to  their  talents,  is  not  congress  as  capable  of  forming 


the  Judiciary  Establishment.  227 

a  correct  opinion  as  they  are?  Are  not  its  members  act- 
ing under  a  responsibility  to  public  opinion,  which  can 
and  will  check  their  aberrations  from  duty.  Let  a  case, 
not  an  imaginary  one,  be  stated.  Congress  violate  the 
constitution  by  fettering  the  press;  the  judicial  corrective 
is  applied  to;  so  far  from  protecting  the  liberty  of  the 
citizen,  or  the  letter  of  the  constitution,  you  find  them 
outdoing  the  legislature  in  zeal;  pressing  the  common  law 
of  England  into  the  service,  where  the  sedition  law  did 
not  apply. — Suppose  your  reliance  had  been  altogether 
on  this  broken  staff  and  not  on  the  elective  principle. 
Your' press  might  have  been  enchained  till  doomsday, 
your  citizens  incarcerated  for  life,  and  where  is  your  re- 
medy? But  if  the  construction  of  the  constitution  is  left 
with  us,  there  are  no  longer  limits  to  our  power,  and  this 
would  be  true  if  an  appeal  did  not  lie,  through  the  elec- 
tions, from  us  to  the  nation — to  whom  alone,  and  not  to  a 
few  privileged  individuals,  it  belongs  to  decide  in  the  last 
resort,  on  the  constitution. — Gentlemen  tell  us,  that  our 
doctrine  will  carry  the  people  to  the  gallows,  if  they  suffer 
themselves  to  be  misled  into  the  belief,  that  the  judges 
are  not  the  expositors  of  the  constitution.  Their  practice 
has  carried  the  people  to  infamous  punishment,  to  fine 
and  imprisonment,  and  had  they  affixed  the  penalty  of 
death  to  their  unconstitutional  laws,  judges  would  not 
have  been  wanting  to  conduct  them  to  the  gibbet. 

A  case  in  the  supreme  court  has  been  mentioned.  I 
certainly  do  not  mean  to  put  my  opinion  in  competition 
with  that  of  the  gentleman  from  Delaware,  on  a  profes- 
sional subject;  but  I  cannot  agree  with  him,  that  the 
granting  of  the  rule  was  not  an  assumption  of  the  juris- 
diction. Suppose  a  motion  made  in  a  court  of  Virginia, 
for  a  rule  to  be  served  on  the  governor  of  Massachusetts, 
to  show  cause  why  a  mandamus  should  not  issue,  com- 
manding him  to  do  a  specific  act.  To  my  unlettered  judg- 


228  Mr.  Randolph's  Speech  on 

ment  the  acceptance  of  the  motion  would  be  to  presume 
that,  if  the  governor  should  not  show  cause,  the  manda- 
mus might  issue.  Would  not  any  court  reject  such  a 
motion  on  the  consideration,  that  the  chief  magistrate  of 
another  state  was  not  amenable  to  their  jurisdiction?  The 
gentleman  from  Delaware  doubtless  recollects,  and  proba- 
bly better  than  I  do,  for  I  believe  he  was  a  spectator  of 
the  trial,  the  refusal  of  a  subpoena  to  a  man  under  a  cri- 
minal prosecution  (I  allude  to  the  case  of  Cooper  in  Phi- 
ladelphia) to  be  served  on  the  president  as  a  witness  on 
the  part  of  the  prisoner.  Was  that  a  subject  of  inferior 
magnitude  to  a  mere  question  of  municipal  regulation? 
The  court,  which  it  seems  has  lately  become  the  guardian 
of  the  feeble  and  oppressed  against  the  strong  arm  of 
power,  found  itself  then  destitute  of  all  authority  to  issue 
the  writ.  Was  it  because  of  the  influence  and  interest  of 
that  persecuted  man,  or  of  his  connexions,  that  it  was  un- 
necessary at  that  time  to  exert  this  protecting  power?  No, 
sir,  you  may  invade  the  press;  the  courts  will  support 
you,  will  outstrip  you  in  zeal  to  further.this  great  object: 
your  citizens  may  be  imprisoned,  and  amerced;  the  courts 
will  take  care  to  see  it  executed:  The  helpless  foreigner 
may,  contrary  to  the  express  letter  of  your  constitution, 
be  deprived  of  compulsory  process  for  obtaining  witnesses 
in  his  defence;  the  courts  in  their  extreme  humility  can- 
not find  authority  for  granting  it;  but  touch  one  cent  of 
their  salaries,  abolish  one  sinecure  office  which  the  judges 
hold,  and  they  are  immediately  arrayed  against  the  laws, 
as  the  champions  of  the  constitution.  Lay  your  hands  on 
the  liberties  of  the  people;  they  are  torpid;  utterly  insen- 
sible: but  affect  their  peculiar  interest  and  they  are  all 
nerve.  They  are  said  to  be  harmless  unaspiring  men. 
Their  humble  pretensions  extend  only  to  a  complete  ex- 
emption from  legislative  control;  to  the  exercise  of  an 
inquisitorial  authority  over  the  cabinet  of  the  executive, 


the  Judiciary  Establishment.  229 

and  the  veto  of  the  Roman  tribunate  upon  all  our  laws; 
together  with  the  establishing  any  body  of  foreign  laws 
which  they  may  choose  to  declare  a  part  of  the  constitu- 
tion. Grant  this  authority,  sir,  to  your  judges,  and  you 
will  have  a  constitution,  which  gentlemen  who  are  such 
enemies  to  dumb  legislation  may  indeed  approve,  because 
it  is  the  very  reverse  of  that  which  has  been  the  object  of 
their  animadversions.  To  you  will  indeed  belong  the 
right  of  discussing;  but  there  ends  your  power;  the  judges 
are  to  decide,  and  without  appeal.  In  their  inquisitorial 
capacity,  the  supreme  court,  relieved  from  the  tedious 
labour  of  investigating  judicial  points,  by  the  law  of  the 
last  session,  may  direct  the  executive  by  mandamus  in 
what  mode  it  is  their  pleasure  that  he  should  execute  his 
functions.  They  will  also  have  more  leisure  to  attend  to 
the  legislature,  and  forestall  by  inflammatory  pamphlets 
their  decision  on  all  important  questions;  whilst  for  the 
amusement  of  the  public  we  shall  retain  the  right  of  de- 
bating, but  not  of  voting. 

A  new  mode  of  appeal,  that  of  the  sword,  has  been 
lately  introduced.  It  is  worthy  of  remark,  that  the  asra  of 
this  appeal  commenced  with  the  downfall  of  the  power  of 
the  last  administration.  The  political  opponents  of  that 
gentleman  have  set  him  an  example  of  which  I  hope  he 
and  his  friends  will  profit.  They  knew  that  the  constitu- 
tion had  been  violated.  It  was  no  business  of  speculation, 
but  a  plain  matter  of  fact.  What  was  their  conduct?  They 
preferred  submission  to  civil  dissention.  They  addressed 
themselves  to  the  good  sense  of  the  community,  and  their 
judgment  has  been  affirmed  by  the  people  through  the 
medium  of  the  elections. 

But,  sir,  another  objection  is  held  up,  as  fatal  to  the 
bill  on  your  table:  that  it  diminishes  the  salaries  of  the 
district  judges  of  Kentucky  and  Tennessee,  by  repealing 
the  law  which  increased  them.  Let  us  examine  this  fact. 


230  Mr.  Randolph's  Speech  on 

By  this  very  law,  the  courts  of  those  districts  were  ex- 
pressly abolished,  the  office  of  judge  of  those  courts  was 
destroyed.  The  men  it  is  true,  were  retained  and  a  judi- 
cial office  given  them — but  an  office  entirely  different  from 
the  former,  with  distinct  functions  and  jurisdiction,  and 
with  different  salary.  We  propose  to  restore  those  judges 
to  their  old  offices  by  abolishing  the  new  ones,  to  which 
they  never  were  constitutionally  appointed.  If  their  ap- 
pointment, however,  was  constitutional,  I  leave  it  to  the 
committee  to  decide  whether  the  district  judge  of  Ken- 
tucky might  not,  on  the  theory  of  our  adversaries,  de- 
mand both  salaries — since  you  had  no  right  to  take  away 
his  old  office  and  salary.  I  have  not  the  pleasure  of  a  per- 
sonal acquaintance  with  the  gentleman  who  fills  that  office; 
but  his  reputation  is  too  high  to  lead  me  to  suppose  such 
a  claim  possible.  I  mean  no  disrespect  to  him,  far  from  it, 
in  putting  this  case.  Instead,  as  has  been  asserted,  of  ren- 
dering the  office  of  judge  a  sinecure  as  a  pretext  for 
abolishing  it,  we  propose  to  restore  the  establishment  to 
its  primitive  purity:  to  give  tke  judges  both  of  the  dis- 
trict and  supreme  courts  duties  to  perform — the  latter 
being,  it  seems,  now  destitute  of  any  other  employment 
than  keeping  the  consciences  of  the  inferior  courts — we 
mean  to  restore  the  district  judges  to  their  office  of  which 
they  have  been  deprived — not  believing  a  sinecure  court 
of  appeals  to  be  desirable.  Whence  then  the  clamour  that 
the  judicial  authority  is  to  be  perverted  to  the  vile  pur- 
pose of  wreaking  party  vengeance.  Suppose  a  case  to 
occur — are  not  the  persons  who  are  to  decide  of  the  same 
political  character  with  the  minority?  Would  that  gentle- 
man have  any  cause  to  fear  the  decision  of  a  controversy 
with  a  person  of  a  different  political  complexion  because 
of  that  difference?  Is  not  the  judiciary  left  precisely  in  the 
state  in  which  it  was  a  twelvemonth  ago?  Are  not  the 
same  principles  to  govern,  and  the  same  individuals  to 


the  Judiciary  Establishment.  231 

decide?  It  is  not,  however,  on  account  of  the  paltry  ex- 
pense of  the  new  establishment  that  I  wish  to  put  it  down. 
No,  sir,  it  is  to  give  the  death  blow  to  the  pretension  of 
rendering  the  judiciary  an  hospital  for  decayed  politicians; 
to  prevent  the  state  courts  from  being  engulphed  by  those 
of  the  union;  to  destroy  the  monstrous  ambition  of  arro- 
gating to  this  house  the  right  of  evading  all  the  prohibi- 
tions of  the  constitution  and  holding  the  nation  at  bay. 

If  gentlemen  dread  the  act  which  we  are  about  to  pass* 
they  will  remember  that  they  have  been  the  means  of 
compelling  us  to  it.  They  ought  to  have  had  the  for- 
bearance to  abstain  from  such  a  measure  at  such  a  crisis. 
They  have  forced  upon  us  the  execution  of  a  painful  duty 
by  their  own  want  of  prudence.  If  they  wished  the 
judges,  like  the  tribe  of  Levi,  to  have  been  set  apart  from 
other  men  for  the  sacred  purposes  of  justice,  they  should 
have  pondered  well  before  they  gave  to  publicans  and 
sinners  the  privilege  of  the  high  priesthood.  It  is  said 
that  there  is  irrefragable  proof  in  the  smallness  of  the 
salaries  annexed  to  them,  that  those  offices  were  not  es- 
tablished under  any  improper  bias.  If  such  bias  had  ex- 
isted, 10,000  dollars,  or  a  larger  sum,  might  have  been 
given.  To  execute  a  proposition  of  this  sort,  votes  I  be- 
lieve never  would  have  been  found  wanting.  On  that,  as  on 
another  occasion  which  has  been  mentioned,  we  should 
have  had  blank  votes.  This  is  however  triumphantly 
brought  forward  as  an  instance  of  the  want  of  power  in 
one  legislature  over  the  acts  of  another.  The  president's 
salary  might  have  been  increased,  or  that  of  the  judges, 
to  a  million  or  more  of  dollars;  where  would  be  your 
remedy?  I  will  tell  gentlemen;  in  a  refusal  of  an  appro- 
priation. Who  would  hesitate  in  such  a  case?  The  salary 
might  exceed  the  annual  revenue.  This  too,  is  another 
instance  I  suppose  of  the  inadmissibility  of  extreme  cases. 
I  should  not  hesitate,  sir,  to  refuse  an  appropriation  in 


232  Mr.  Randolph's  Speech,  %rc. 

such  a  case,  and  throw  myself  on  the  good  sense  of  my 
country. 

The  example  of  a  mighty  nation  has  been  held  up  as  a 
solemn  warning  against  an  act  which  is  said  to  prostrate 
the  barriers  of  the  constitution;  to  that  example  be  the 
decision  of  this  question  referred.  A  government  en- 
trenched beyond  the  reach  of  public  opinion,  had  for  ages 
been  accumulating  one  abuse  upon  another;  against  an 
authority  which  time  served  but  to  render  more  intolera- 
ble, the  nation  was  compelled  to  seek  refuge  in  a  recur- 
rence to  revolutionary  principles.  And  are  we,  therefore, 
to  sanction  a  construction  of  the  constitution  which  claims 
irresponsibility  for  public  agents?  Which  allows  no  re- 
medy for  grievances  but  revolution,  and  that  perhaps 
when  a  recurrence  to  such  a  measure  shall  be  too  late. 
Who,  after  such  an  example,  ought  to  contend  for  a  per- 
version to  individual  aggrandizement  of  that  power  which 
was  delegated  for  the  general  good. 

I  have  endeavoured,  Mr.  Chairman,  in  my  poor  desul- 
tory way,  to  repel  some  of  the  arguments  which  have  been 
offered  by  the  gentleman  from  Delaware.  Upon  some 
topics  it  has  been  extremely  painful  to  me  to  dilate;  they 
could  not  have  been  avoided;  they  were  obtruded  upon 
me.  There  is  one  however,  on  which  it  may  be  expected 
I  should  say  something.  I  believe  it  unnecessary;  the  poi- 
son carries  with  it  its  own  antidote.  We  should  have  ex- 
pected such  remarks  from  that  gentleman.  If,  however, 
he  is  now  anxious  to  protect  the  independence  of  this  and 
the  other  house  of  congress  against  executive  influence, 
regardless  of  his  motives,  I  pledge  myself  to  support  any 
measure  which  he  may  bring  forward  for  that  purpose; 
and  I  believe  I  may  venture  to  pledge  every  one  of  my 
friends. 


233 


SPEECH  OF  MR.  WICKHAM, 

ON  THE  TRIAL  OP  AARON  BURR,  LATE  VICE-PRESIDENT  OF  THE 
UNITED  STATES,  FOR  HIGH  TREASON. 

1  HE  trial  of  Mr.  Burr  on  the  charge  of  trea- 
son, had  been  carried  on  with  little  interruption  for  three 
months,  when  it  appearing  that  there  was  no  possibility 
of  legally  establishing  the  charge,  or,  whatever  the  pri- 
soner's intentions  might  have  been,  of  proving  a  manifest 
overt-act  against  him,  a  motion  was  made  on  his  behalf 
to  exclude  farther  evidences  on  the  trial  for  treason. — 
The  question  was  of  the  utmost  importance,  and  was  ar- 
gued in  a  manner  worthy  of  it — to  adopt  the  words  of 
Chief  Justice  Marshall  on  the  occasion, — a  A  degree  of 
eloquence  seldom  displayed  on  any  occasion,  embellished 
a  solidity  of  argument  and  a  depth  of  research  by  which 
the  court  was  greatly  aided  in  forming  the  opinion  it  was 
to  deliver."  The  motion  succeeded,  and  the  consequence 
was  a  verdict  of  not  guilty. 

In  support  of  the  motion,  the  following  speech  was 
made  by  Mr.  Wickham. 

May  it  please  your  honours: 

If  this  were  an  ordinary  case,  that  were  likely  to  be 
terminated  within  the  period,  or  ten  times  the  period, 
that  is  ^commonly  occupied  in  making  a  decision,  we 
should  not  now  have  attempted  to  make  an  interruption: 
but  it  is  obviously  not  so,  when  we  take  a  view  of  130 
or  140  witnesses,  which  the  prosecution  has  announced 
their  design  to  bring  forward,  (and  the  defendant  has 
about  20  to  produce  in  his  behalf,)  and  when  we  see  the 
number  of  counsel  employed  on  each  side.  From  these 

Vol.  II.  2Q 


234  Mr.  Wickharn's  Speech  on 

considerations,  upon  the  common  mode  of  calculation,  wc 
must  anticipate  that  it  will  take  up  weeks,  if  not  months, 
before  we  shall  be  permitted  to  see  a  close  to  this  (already) 
tedious  enquiry:  nay,  sir,  you  cannot  have  a  well  ground- 
ed hope  offered  you,  that,  at  this  inclement  and  sickly 
season  of  the  year,  it  will  ever  be  terminated. 

But  there  is  enough  already  discovered  in  the  case,  to 
satisfy  you  that,  prove  what  they  will  besides,  the  prose- 
cutor must  fail  in  his  aim,  beyond  the  possibility  of  a 
doubt.  He  has  no  alternative:  there  is  enough  to  show 
this  jury,  from  the  statement  of  the  gentleman  himself, 
that  it  is  impossible  for  him,  in  any  way  within  his  power, 
to  obtain  the  conviction  of  Col.  Burr;  and  the  idea  of  his 
proceeding  is  absurd,  and  can  have  no  other  effect  than 
an  immense  and  useless  waste  of  time,  and  a  long  impri- 
sonment of  the  jury  to  the  great  possible  injury  of  their 
healths.  He  ought  at  once  (himself)  on  these  grounds,  to 
go  forward,  and  agree  to  close  the  cause. 

It  is  admitted  by  the  attorney,  sir,  that  Col.  Burr  was 
not  present,  nor  within  the  district,  when  the  overt  act 
charged  %vas  stated  to  have  been  committed.  I  proceed 
upon  this  position,  which  I  understand  to  be  admitted  in 
fact. 

Mr.  Hay.  I  only  stated  that  we  are  not  prepared  to 
prove  that  he  was  present. 

Mr.  Wickham.  If  it  shall  not  be  proven  that  he  was 
present,  sir,  I  contend  that  under  the  constitution  and 
laws  of  the  United  States;  under  the  law  of  England;  un- 
der the  invariable  usages  of  all  courts,  it  is  impossible  to 
maintain  such  a  presentment  as  that  of  levying  war  against 
the  United  States.  It  must,  inevitably,  be  proved  that  the 
person  was  actually  present  to  levy  the  war,  in  person, 
before  it  can  be  denominated  an  overt  act  of  levying  war. 
I  know  that  there  are  dicta  of  a  different  description  in 
some  few  English  authorities,  but  I  shall  be  able  in  its 


the  Trial  of  Aaron  Burr.  235 

place  to  establish  undeniable  proof  of  its  inapplicability  at 
the  time  and  place.  It  is  a  duty  that  I  owe,  not  only  to 
my  client,  but  to  every  citizen  in  this  community,  be- 
cause every  individual  is  interested  in  it:  it  is  a  duty  that 
I  owe  to  posterity,  and  which,  if  it  were  only  for  their 
sake,  I  never  would  flinch  from  executing. 

The  first  ground  I  shall  take  up  to  prove  this  position 
is  the  constitution  of  the  United  States.  I  never  will  give 
my  tacit  assent  to  so  dangerous  a  doctrine  as  to  admit 
that,  under  the  constitution  of  our  country,  any  man  can 
possibly  commit  treason  against  the  country  except  he  be 
actually  present  in  person  to  do  the  act.  On  that  point 
alone,  though  there  are  many  others,  I  flatter  myself  to  be 
able  to  prove  to  your  honours  that  the  present  case  is  not 
sustainable. 

Art.  3.  sect.  3.  constitution  United  States,  reads,  that 
"  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them;  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort, "  &c. 

In  discussing  this  question,  my  client  will  pardon  me 
if  I  say  that  I  feel  a  great  deal  of  pleasure  in  stating  that 
it  is  not  his  case  alone  that  I  am  now  arguing,  under  this 
position:  but  it  is  the  case  of  every  man  that  breathes  in 
this  community:  that  I  refer  not  to  the  good  or  bad  deeds 
of  Col.  Burr — he  may  be  as  bad  a  man  as  the  counsel  on 
the  other  side  think  that  he  is:  or  he  may  be  as  good  as 
his  counsel  contend  that  he  is.  It  is  an  abstract  principle 
that  I  contend  for,  relating  not  to  any  particular  man,  but 
to  all  men;  and  it  will  be  a  governing  principle,  as  long 
as  the  United  States  shall  continue  a  people,  with  the 
same  habits  and  liberties.  If  our  constitution  shall  even 
"  vanish,  and  leave  not  a  wreck  behind,"  yet  this  will  be 
a  governing  doctrine,  that  cannot  change. 

The  words  of  the  constitution  are  plain,  and  no  person 
can  be  convicted  for  treason  under  it  unless  he  actually 


236  Mr.  Wickhain's  Speech  on 

levies  war  against  the  United  States.  There  is  no  neces- 
sity of  resorting  to  any  artificial  rules  of  construction 
whatever,  to  understand  the  meaning  of  these  words:  it  is 
obvious.  But,  if  we  are  to  construe  it  by  any  artificial 
rules,  where  are  they  to  be  drawn  from?  Why,  sir,  from 
the  common  law  of  England,  and  the  rules  of  courts 
there,  connected  as  they  are  with  absurdities.  They  have 
put  a  construction  upon  their  statutes  on  treason;  and 
their  courts  have  been  governed  by  it,  but  their  con- 
structions, on  their  statutes,  are  not  applicable  here,  be- 
cause our  constitution,  which  originally  declared  what 
treason  should  be  in  this  country,  is  different  from  a  sta- 
tute that  was  made  to  alter  or  improve  the  common  law, 
which  before  existed,  as  in  England.  Our  constitution  is 
a  new,  and  original  compact,  made  between  the  people 
of  the  United  States  for  their  mutual  government;  and 
has  no  reference  to  rules  of  any  particular  arts  or  science, 
to  jurisprudence,  or  any  such  thing;  but  it  is  formed  upon 
the  sound  principles  of  reason  and  moral  rights,  which 
are  of  superior  dignity  to  a  statute. 

If,  therefore,  these  words,  according  to  their  natural 
meaning,  will  bear  the  construction  I  contend  for;  and 
the  constitution  is  superior  to  any  statutory  provisions;  it 
is  not  necessary  to  argue  farther  on  this  point,  unless  the 
words  themselves  lead  to  absurdity.  The  words  them- 
selves, were  introduced  to  prevent  any  arbitrary  con- 
struction, or  any  dangerous  doctrine,  which  sound  reason 
and  propriety  imperiously  forbid  the  genius  of  our  go- 
vernment to  permit:  and  even  though  they  may  be  sup- 
posed to  lean  to  the  side  of  humanity,  yet  it  is  a  true 
maxim,  that  it  is  better  for  ninety-nine  guilty  persons  to 
escape  punishment  than  that  one  innocent  man  should 
suffer  under  an  arbitrary  and  wrong  construction  of  law. 
Thus,  every  argument,  drawn  from  reason  and  principles 
of  right,  is  in  our  favour.  But,  if  the  counsel  on  the  other 


the  Trial  of  Aaron  Burr.  237 

side  will  rely  upon  this  arbitrary  principle  in  their  reason- 
ing, I  shall  contend,  that  their  construction  is  not  war- 
ranted, either  on  the  principles  of  English  law,  or  upon 
our  constitution. 

Upon  the  English  law,  Lord  Coke  (who  had  no  bowels 
of  human  kindness)  is  the  first  and  principal  to  support 
the  artificial  and  arbitrary  constructions,  and  his  doctrines 
are  contradicted  and  opposed  by  many  writers,  since  that 
time,  who  are  deservedly  venerated  for  their  talents  and 
humanity.  The  principle  declared  by  him,   and  which 
must  be  contended  for  in  this  case,  is,  that  all  are  princi- 
pals in  treason,  and  that  there  is  no  such  character  as  an 
accessory;  and  thus  those  who,  in  any  degree,  participated 
in  it,  are  included  in  its  guilt  by  relation.  The  rule  there- 
fore is  a  borrowed  one,  and  drawn  from  the  worst  of 
times.  Now  what  is  an  accessory  to  a  fact.  It  must  be 
either  an  aider  or  abettor  before,  or  at  the  fact;  or  a  re- 
ceiver after  the  fact.  But  the  writers  in  England  have  not 
settled  the  doctrine  that  all  are  principals  in  treason:  it  is 
an  abstract  proposition  of  some  of  the  writers,  and  has 
not  been  acted  on,  except  in  the  case  of  Sir  Nicholas 
Throgmorton,  if  that  can  so  be  denominated;  and  we  are 
not  to  shape  our  decisions  on  a  principle  not  tested  even  in 
England.  That  case  is  reported  in  1  State  Trials,  p.  63.  I 
will  not  read  it,  because  your  honour  can  refer  to  a  faith- 
ful copy  (in  abstract)  of  it  in  Tucker's  Blackstone,  vol.  4, 
p.  44,  appendix.  In  that  case  the  charges  are  various — 
levying  war  and  compassing  the  king's  death;  so  that  the 
prosecutor  had  his  chance  of  convicting  the  prisoner  un- 
der some  or  other.  I  have  looked  into  all  the  cases  re- 
specting aiders  or  accessories  before  the  fact,  and  discover 
no  one  to  vindicate  the  doctrine  that  a  person  can  be  a 
principal  in  treason  or  in  felony  unless  he  was  present; 
and  I  presume  the  doctrine  cannot  be  supported.  The 
case  of  Mary  Speak,  in  Tremain's  Pleas,  p.  3,  is  the  only 


238  Mr.  Wickhani's  Speech  on 

case  where  the  aider  or  accessory  of  a  treason,  before  the 
fact,  has  been  ever  brought  to  trial.  She  was  charged 
with  aiding  or  assisting  the  duke  of  Monmouth  in  send- 
ing provisions:  she  was  not  an  accessory  in  the  fact,  but 
before,  or  during  the  fact.  This  lady  was  tried  in  the  time 
of  James  II.  before  the  celebrated  but  infamous  Jeffries, 
and  whether  even  he  carried  this  doctrine  through  or  not, 
it  is  impossible  to  say,  but  certainly  no  one  except  him 
did:  and  I  presume  that  no  decision  of  Jeffries  would  be 
sailed  up  as  a  precedent  in  our  time  and  country. 

The  other  great  branch  of  treason  within  the  English 
statutes,  is  compassing  the  king's  death.  We  all  know  that 
this  crime  is  supposed  to  strike  at  the  existence  of  the 
government,  and  therefore  in  that  country  it  is  considered 
as  a  heinous  offence,  and  we  also  know  that  it  is  a  species 
of  crime  which  may  consist  in  intention.  The  agreement 
or  the  determination  to  do  the  act  makes  the  crime,  al- 
though no  blow  be  struck.  Now,  it  is  impossible  that 
there  can  be  aiders  and  abettors  in  that  crime,  because 
every  person  concerned  in  the  intention  is  a  principal.  It 
is  unlike  levying  war,  because  it  cannot  be  imagined  that 
an  intention  or  agreement  to  levy  war  is  levying  of  war: 
they  only  become  traitors,  by  relation,  when  the  war  is 
actually  levied. 

I  admit,  however,  that  there  are  to  be  found  in  the 
English  books,  convictions  of  a  number  of  persons,  who 
were  accessories  after  the  fact;  and  it  may  be  contended 
upon  a  parity  of  reasoning,  that  cases  of  receivers  after 
the  fact  apply  directly  to  the  same  point.  I  must  admit  the 
correctness  of  the  position,  if  it  is  made.  But  it  is  proper, 
when  we  advert  to  these  decisions,  to  enquire  at  what  timey 
and  under  what  circumstances  they  were  passed.  Lady 
Lysle's,  Kernly's  and  Eliz.  Grant's  as  cases,  in  4  State 
Trials,  pages  106,  141,  and  142,  and  also  Burton's  case, 
relate  to  accessories  after  the  fact.  [Mr.  W.  here  read  an 


the  Trial  of  Aaron  Burr.  239 

extract  from  Hume's  history  of  England,  vol.  8,  chap.  7, 
p.  233,  in  which  the  cruelties,  perpetrated  by  Col.  Kirk, 
&c.  are  depicted,  with  Mr.  Hume's  inference.]  These 
declarations  and  these  cases  are  precedents.  They  can  find 
no  other. 

But,  sir,  since  the  revolution  of  1688,  the  decisions  of 
the  English  courts  have  led  to  conclusions  directly  other- 
wise: the  most  numerous  cases  of  treason  since  that  period 
have  been  decided  by  judges  of  a  different  stamp,  and 
who  are  entitled  to  the  highest  respect.  The  decisions 
upon  the  rebels  of  1745  demand  our  most  strict  attention 
and  respect:  the  battles  of  Culloden  and  of  Preston  Pans; 
and  the  late  duke  of  Cumberland's  victories  over  the  re- 
bels, are  not  yet  forgotten;  nor  are  the  decisions  of  lord 
Mansfield  or  Sir  John  Strange:  and  yet,  in  the  whole  of 
the  legal  adjudications  of  that  period,  we  do  not  find  one 
instance  where  a  person  who  harboured  a  traitor  was  con- 
victed of  treason;  nor  are  decisions  to  be  found  where  the 
counsellors  or  advisers  of  traitors  are  considered  as  prin- 
cipals in  the  fact  of  treason.  The  pretender's  escape  is 
accurately  described,  and  though  it  was  known  who  had 
assisted  and  harboured  him  in  his  escape,  there  is  not  an 
authority  of  a  single  prosecution  in  that  case  for  harbour- 
ing, counselling  or  advising.  But,  let  us  not  draw  in- 
ferences from  the  silence  or  inactivity  of  the  officers  of 
the  crown  or  of  the  court,  but  let  us  advert  to  the  princi- 
ples upon  which  the  courts  saw  fit  to  act.  The  fact  of  the 
pretender  having  raised  an  army  to  dethrone  the  king, 
(George  II.)  was  notorious;  that  the  rebels  marched  from 
Scotland  into  England,  and  gave  battle  after  battle,  is  as 
well  known  as  the  existence  of  the  island  itself.  There 
was  no  difficulty  in  proving  the  fact:  every  body  knew  it; 
but  the  only  difficulty  (and  all  that  was  to  be  proved  to 
criminate  any  man)  was,  that  he  was  there,  and  engaged 
in  the  rebellion.  This  was  a  situation  in  which  every  man 


240  Mr.  JVickham's  Speech  on 

became  a  party,  because  the  rebellion  was  a  general  one, 
and  the  pretender  had  marched  into  the  very  heart  of 
England.  Now,  if  the  government  had  determined  to 
point  out  any  as  victims,  what  had  they  to  do  but  to  prove 
that  the  person  had  committed  the  crime  of  treason  in  a 
certain  county;  or  if  they  could  not  prove  that,  to  prove 
that  the  pretender  had  marched  into  that  county;  and  that 
the  person  charged,  had  some  kind  of  connexion  with  him 
in  the  rebellion;  and*  then,  according  to  the  doctrine  of 
the  gentleman,  the  person  must  suffer!  But  is  it  so  in 
reality?  No,  sir.  It  was  necessary  that  the  prosecutor 
should  bring  home  the  overt  act  of  levying  war  to  the 
person  charged;  and  to  prove  that  he  had  committed  the 
crime  in  the  county  where  it  was  charged. 

This  doctrine  is  laid  down  in  Foster's  Crown  Law,  p. 
3  to  6,  and  at  the  foot  of  page  6,  is  a  remark  particularly 
emphatical;  it  was  laid  as  the  cases  respectively  required. 
Now,  according  to  the  doctrine  contended  for,  on  the 
other  side,  what  did  they  require?  Why,  prove  that  the 
rebellion  existed,  (whether  in  England  or  in  Scotland,) 
and  prove  that  there  was  some  sort  of  a  connexion  be- 
tween the  person  charged,  and  the  general  rebellion,  and 
then  he  would  be  guilty?  But  this  was  not  the  case,  sir; 
the  connexion  with  the  rebellion  and  the  actual  engage- 
ment in  it,  at  a  certain  place,  were  two  things,  agreeable 
to  the  doctrine  of  justice  Foster.  See  Fost.  p.  9,  and  9 
St.  Tr.  558.  The  facts  were  not  committed  by  Deacon, 
in  Cumberland,  "  where  the  venue  of  the  overt  acts  was 
laid,"  and,  it  was  the  opinion  of  the  judges  that  "some 
overt  act  laid,  be  proved  on  the  prisoner  in  Cumberland; 
but  that  being  done,  acts  of  treason,  tending  to  prove  the 
overt  acts  laid,  though  done  in  a  foreign  country,  may  be 
given  in  evidence."  M'Nally,  p.  505.  Again.  Foster, 
p.  22.  Sir  J.  Wedderburn's  case,  the  doctrine  is  strength- 
ened. The  overt  act  was  laid  in  Aberdeen,  and  it  was 


the  Trial  of  Aaron  Burr.  241 

proved  that  he  was  there:  having  proved  that,  they  were 
at  liberty  to  go  elsewhere  for  additional  proof.  But  the 
doctrine  our  opponents  would  contend  for,  would  not  re- 
quire it  to  be  proved  that  he  was  in  Aberdeen.  And, 
upon  that  doctrine,  surely,  lord  Mansfield  and  other 
counsel  of  high  celebrity  would  be  novices  in  having  ad- 
mitted of  the  doctrine  of  actual  presence.  The  case  of 
lord  Balmarino,  in  9  St.  Tr.  605,  who  was  charged  with 
having  marched  into  and  occupied  the  city  of  Carlisle,  is 
of  the  same  nature.  It  was  clear  that  he  was  not  there  on 
the  day  that  the  city  was  taken,  but  that  he  marched  in 
with  his  troops  afterwards.  Now,  according  to  their  doc- 
trine, lord  Mansfield  would  have  said  there  was  no  diffi- 
culty in  the  case,  because  whether  the  prisoner  was  there 
or  not,  would  not  have  mattered,  since  the  army  was 
there,  and  he  was  connected  with  that  army. 

[Some  conversation  here  occurred  between  the  court 
and  the  counsel  on  both  sides  on  the  case  referred  to,  in 
which  Mr.  W.  contended  that  the  English  law  writers 
were  uniformly  of  opinion  that  the  party  charged  must 
have  been  present  at  the  treason,  or  the  indictment  could 
not  be  sustained,  except  supported  by  the  dangerous  doc- 
trine of  constructive  treason,  which  he  could  not  imagine 
would  be  contended  for.  He  mentioned  lord  Coke,  Stan- 
ford and  lord  Hale,  who  had  successively  copied  each 
other,  the  history  of  which  opinions  was  well  reported  in 
judge  Tucker's  Blackstone,  appendix  to  vol.  4,  note  J, 
pages  41  to  47,  and  plainly  shows  how  error  has  been  be- 
gotten, and  is  sustained  by  error.  The  decisions  and  dicta 
of  the  ancient  law  writers,  lord  Coke  and  others,  prove 
that  their  theory  and  their  practice  was  at  variance.   They 
were  all  fond  of  a  particular  quaintness  of  expression,  and 
their  opinions  were  regarded  as  law.  Thus,  among  others, 
lord  Coke  declared  that,  in  the  highest,   or  the  lowest 
offences,  there  was  no  such  thing  as  accessories,  but  that 
Vol.  II.  2  H 


242  Mr.  Wickharrts  Speech  on 

all  were  principals.  Now  if  this  rule  were  to  be  applied 
to  some  offences  (assault  and  battery  for  instance)  it  would 
degenerate  into  palpable  absurdity  in  practice.  For  in- 
stance: A  is  offended  with  B,  but  he  does  not  choose  to 
risk  his  own  person  in  obtaining  the  satisfaction  of  a 
chastisement,  but  employs  a  bravo  to  do  it  for  him:  but 
how  can  an  action  be  brought  against  the  procurer?  Cer- 
tainly no  one  can  become  a  principal  in  the  trespass  upon 
the  person  of  a  man,  except  he  who  does  the  act  of  tres- 
pass, and  the  act  of  trespass  is  not  perpetrated  by  advising 
or  instigating  another  to  do  it.  Hawkins's  pleas,  ch.  29, 
sect.  4,  p.  440.  No  man,  sir,  can  be  a  principal,  in  an 
assault,  except  he  be  personally  present,  nor  can  he  be 
charged  with  aiding  in  an  assault.  Thus,  if  a  man  in  one 
county,  procure  a  person  in  a  different  county,  to  make 
an  assault  upon  another,  there  can  no  action  for  assault 
lie  against  the  procurer.  And  this  is  the  practice  of  the 
English  courts,  whatever  the  dicta  of  writers  might  have 
been.] 

Mr.  Hay.  I  certainly  have  stated  that  no  person  who 
shall  procure  one  man  to  beat  another  can  be  called  a 
principal  in  the  assault. 

Mr.  JVickham.  Well,  sir:  if  the  doctrine  and  practice 
of  the  English  courts  were  exactly  as  the  gentleman  says, 
and  admitting  that  constructive  treasons  were  constantly 
punished  in  England;  and  that  any  man  connected  with 
rebels  was  to  be  declared  guilty  of  rebellion;  yet,  I  shall 
contend,  that  it  cannot  be  applied  under  our  constitution 
or  laws.  It  is  well  known  that  the  statute  25  Edward  III. 
is  the  foundation  of  all  the  indictments  for  treason  in  that 
country,  but,  that  that  statute  did  not  create  the  doctrine 
of  treason,  or  make  that  crime  such,  which  was  not  such 
before,  but  that  it  was  intended  rather  to  narrow  than  en- 
large the  rules  of  common  law,  1  Hale's  Pleas  of  the 
Crown,  ch.  11,  p.  75.  87;  and  Hume's  Hist,  of  England. 


the  Trial  of  Aaron  Burr.  248 

Before  that  period,  it  was  a  common  law  crime,  but  under 
our  constitution  there  is  no  common  law,  as  belonging  to 
the  United  States.  I  know  not  whether  it  is  necessary  or 
not  to  prove  this  position,  because  I  do  not  know  but  the 
counsel  for  the  United  States  hold  the  same  doctrine.  I 
repeat  that,  as  to  crimes  and  offences  against  the  United 
States,  there  is  no  common  law  of  the  United  States  as 
such,  but  that  the  courts  are  governed  by  the  common 
law  of  the  state  where  such  court  sits.  Thus  the  rules  of 
this  court  are  governed  by  a  common  law,  not  because  it 
is  a  common  law  of  the  country  at  large,  but  the  common 
law  of  Virginia:  and  so  it  applied  in  the  states  respectively. 
Thus,   any  crime  punishable  by  the  constitution  of  the 
United  States,  or  by  act  of  congress,  must  necessarily  be 
taken  out  of  any  common  law  jurisdiction,  because  it  is 
made  uniform  in  all  the  states.  If,  therefore,  a  treason  was 
to  be  tried  in  a  state  where  there  is  no  common  law  (if 
such  were)  yet  the  case  would  be  precisely  the  same, 
because  the  rule  is  general,  and  makes  the  offence  the 
same.  As  the  United  States  therefore  has  no  common  law, 
treason  could  not  become  an  offence,  but  by  the  constitu- 
tion, or  by  statute.  But,  sir,  even  though  made  a  crime 
by  the  constitution,  it  could  not  have  become  punishable 
but  by  statute,  for  the  constitution  must  have  lain  dor- 
mant until  the  law,  establishing  courts,  commonly  called 
the  judiciary  act,  was  passed.  3  Dallas,  Warrel's  case. 
Mr.  W.  also  instanced  the  sedition  law,  and  some  of  the 
cases  tried  under  it. 

Now,  sir,  as  there  is  no  common  law  belonging  to  the 
United  States,  no  act  of  congress  can  refer,  or  be  attached 
to  it  more  than  is  the  constitution;  and  hence,  it  is  neces- 
sary to  enact  statutes  in  order  to  define  the  punishment 
for  crimes.  In  England,  felonies,  &c.  are  offences  punish- 
able at  common  law,  and  the  rule  is,  that  "  statutes  made 
in  affirmance  of  common  law,  or  to  supply  the  defects  of 


244  Mr.  PTickhairfs  Speech  on 

common  law,  are  to  be  construed  according  to  the  rules 
of  common  law."  10  St.  Tr.  436,  M'Daniel's  case;  and 
Hobart  98.  If  an  offence  is  declared  to  be  felony  by  statute, 
that  moment  the  common  law  acceptation  is  applied  to  it 
and  the  accessories  as  well  as  the  principals  are  subjected 
thereto,  and  punishable  by  the  common  law  principles.  It 
is  of  no  consequence,  therefore,  whether  the  statute  men- 
tions accessories  or  not;  they  are  punishable  under  the 
common  law.  Now,  piracy  was  not  considered  as  a  crime 
at  common  law;  1  Hawkin's  Pleas,  ch.  37,  p.  152.  But  a 
statute  made  it  punishable  with  death,  and  it  was  then  de- 
clared felony,  and  thus  the  aiders  and  abbetors  were  in- 
volved, as  in  all  other  cases  of  felony. 

Now,  sir,  if  we  examine  the  cases  by  analogy,  we  must 
consider  that  we  have  no  common  law  here,  and,  conse- 
quently, no  case  being  subjected  to  common  law  doctrines 
and  usages,  leaves  all  crimes  in  the  same  situation  as  pi- 
racy was  in  Great  Britain,  so  that  there  can  be  no  aiders 
or  abettors  in  it.  Crimes  which  are  not  under  common 
law,  but  which  are  punishable  by  statute,  where  accesso- 
ries are  not  mentioned,  those  accessories  cannot  be  pu- 
nished. The  gentleman  might  therefore  have  his  choice:  he 
must  either  admit  of  the  existence  of  the  English  doctrine 
of  common  law  and  constructive  treasons  here;  or  he  must 
admit  of  its  non-existence,  and  to  our  statutory  provision, 
which  excludes  the  common  law  of  the  several  states,  be- 
cause treason  in  one  state  is  the  same  in  every  other.  Such 
was  the  opinion  of  that  congress  who  enacted  the  law  for 
the  punishment  of  treason. 

I  come  now,  may  it  please  your  honours,  to  consider 
what  construction  the  act  of  congress  will  bear.  The  act  of 
April  30,  1790,  Grayd.  Digest,  p.  61,  defines  treason  in  the 
same  words  as  the  constitution  did:  and  it  is  doubtless  that 
the  framers  of  that  case  took  it  for  granted  that  that  part 
of  the  constitution  remained  a  dead  letter  until  the  time 


the  Trial  of  Aaron  Burr.  245 

the  act  was  passed.  But,  neither  in  the  constitution,  nor 
in  the  act  of  congress,  is  a  single  word  said  about  acces- 
sories in  treason,  although  aiders,  abettors,  assistants,  pro- 
curers and  advisers  in  cases  of  murder,  robbery,  piracies, 
&c.  are  mentioned;  and  punishments  enacted  for  them,  if 
connected  either  before  or  after  the  fact;  or  if  harbouring 
persons  after  full  conviction,  guilty  of  such  crimes,  or  set- 
ting a  traitor  at  liberty,  after  his  conviction.  See  the  6.  10. 
11.  12.  and  16  sections  of  the  judiciary  act.  Now,  cer- 
tainly, if  the  rule  of  abettors,  &c.  in  treason,  as  used  in 
England,  had  been  thought  necessary,  or  intended  to  have 
been  adopted  by  statute  in  this  country,  why  was  it  not 
inserted  in  this  act,  where  there  is  a  specification  in  what 
manner  abettors,  &c.  in  other  high  crimes  shall  be  pu- 
nished. Now,  surely  aiders  and  abettors  in  treason  would 
have  been  taken  in  as  particeps  criminis  (if  it  had  been 
intended  by  the  legislature)  as  well  as  in  other  crimes:  and 
this  idea  is  strengthened  by  referring  to  the  23d  section, 
where  rescue  is  spoken  of — "if  any  person  or  persons, 
shall,  by  force,  set  at  liberty,  or  rescue,  any  person  who 
shall  be  found  guilty  of  treason,  murder,  or  any  other  ca- 
pital crime,  &c. — he  shall  suffer  death."  It  is  also  enacted 
that  if  a  rescue  is  made  of  persons  imprisoned  on  suspicion 
of  being  guilty  of  any  of  the  aforesaid  crimes,  fine  and  im- 
prisonment shall  be  imposed. 

Now,  sir,  according  to  the  gentleman's  doctrine,  all  are 
principals  in  treason,  whether  procurers,  or  receivers— 
before  or  after  the  fact;  and  there  is  no  distinction.  This 
is  absurd,  because  there  is  a  manifest  distinction  in  the 
law  between  the  punishment  of  those  who  receive  or  har- 
bour a  traitor  after  conviction,  and  one  before:  the  one 
being  punished  with  death,  and  the  other  fined  in  five 
hundred  dollars  and  imprisoned  one  year; — what  must  ne- 
cessarily be  the  inference  from  this  correct  view  of  the 
statute  on  the  subject?  Why,  sir,  that  congress  had  no  idea 


246  Mr.  Wickharri's  Speech  on 

that  aiders  and  abettors  in  treason  were  comprehended 
within  the  constitutional  definition;  and  that  was  the  rea- 
son why  they  did  not  mention  aiders  and  abettors  in  that 
crime,  whilst  they  did  mention  them  in  murder,  robbery, 
piracy,  fcfc.  I  hold  it  to  be  a  sound  rule  of  law,  that  the 
naming  of  a  punishment  for  a  crime  in  one  instance,  or  of 
one  species,  and  not  naming  it  in  another,  excludes  that 
which  is  not  named  from  the  same  punishment  or  nature, 
or,  more  properly,  that  the  expression  of  the  one,  is  an 
exclusion  of  the  other.  But  even  the  construction  of  the 
English  laws  do  not  include  aiders  and  abettors  in  treason 
as  principals,  except  when  they  were  declared  to  be  such, 
and  it  is  a  palpable  misapplication  of  terms  to  fix  that  con- 
struction upon  them. 

To  prove  these  positions,  Mr.  W.  quoted  1  Hale's 
Pleas,  6.  1,  ch.  24.  p.  258,  and  p.  275:  St.  25  Ed.  Ill;  1 
Mary;  26  Hen.  VIII.  3  ch.  and  27  Hen.  VIII.  ch.  2.  where 
aiders  and  abettors  are  mentioned;  but  where  they  were 
not,  there  must  be  a  conclusion  that  they  were  not  meant. 

But,  sir,  th^  framers  of  our  constitution  did  not  intend 
to  leave  the  instrument  to  construction,  or  to  suffer  future 
legislatures  to  enlarge  treason — their  object  was  to  per- 
petuate to  posterity  a  well  defined  instrument — one  that 
could  not  be  mistaken  in  its  sense;  and  so  the  framers  of 
the  judiciary  law  understood  it:  they  knew  that  it  was  not 
formed  merely  to  keep  the  several  states  in  union,  but  also 
to  perpetuate  the  liberty  of  the  people,  that  posterity  should 
not  be  subject  to  constructive  laws.  Why  is  a  republican 
institution  granted  to  us  in  that  instrument?  Is  it  not,  sir, 
for  the  ijublic  good,  and  for  the  protection  of  the  liberties 
of  the  people?  and  that  is  only  to  be  effected  by  such  an 
established  form  of  government  as  will  secure  to  us  the 
advantages  intended  to  be  conveyed.  The  best  means  to 
perpetuate  that  liberty  is  to  guard  against  constructions; 
and  those  gentlemen  mistake  the  means  for  the  end  who 


the  Trial  of  Aaron  Burr.  247 

attempt  at  the  form,  while  they  neglect  every  thing  like  the 
substance.  In  ages  of  despotism,  whenever  a  person  was 
marked  out  as  a  victim,  it  could  always  be  effected  by  a 
charge  of  treason;  and  a  conviction  was  sure  to  follow: 
this,  sir,  our  convention  and  our  legislators  knew,  that  even 
a  republican  government  might  not  be  proof  against  the 
evil,  except  it  was  particularly  guarded:  they  knew  that  if 
a  majority  of  the  people  could  be  set  in  array  against  any 
individual,  unless  he  had  some  legal  or  constitutional 
ground  to  defend  himself  by,  it  was  in  vain  for  him  to 
depend  upon  sympathy,  and  he  would  be  undone,  how- 
ever worthy  and  virtuous.  To  evince  this,  we  need  only 
look  back  to  the  sanguinary  time  of  Robespierre,  when 
public  sympathy  appeared  to  be  annihilated. 

When  I  speak  of  sanguinary  times  or  blood-thirsty 
men,  I  wish  not  to  be  understood  as  having  any  particular 
reference  to  any  gentleman  or  case,  but  mention  it  merely 
in  an  abstract  sense.  But  the  danger  of  this  arbitrary  power 
was  known  to  the  people  of  the  United  States,  and  know- 
ing this,  they  anticipated  a  provision:  (I  hope  in  God  those 
times  are  not  now  arrived  and  never  may  be  in  this  coun- 
try) they  established  the  principle  that  no  man  should  be 
punished  for  treason  except  he  had  actually  levied  war 
against  the  United  States,  or  adhered  to  the  enemies  there- 
of. Now  admit  of  the  doctrine  of  constructive  treasons, 
and  this  principle  will  be  extinguished,  but  the  plain  and 
perspicuous  language  of  our  constitution  removes  the  case 
beyond  all  possible  doubt,  and  it  can  admit  of  no  possible 
change.  Our  convention  had  the  volume  of  human  nature 
unrolled  before  them — the  spirit  of  human  liberty  was 
known,  was  understood,  was  felt  by  them;  they  knew  that 
perjury  might  be  enlisted  against  any  individual;  they 
knew  that  innumerable  things  might  be  brought,  as 
charges  against  a  man;  and  therefore  they  said  that  treason 
should  "  consist  only  in  levying  war  against  them,  or  in 


248  Mr.  Wickhairts  Speech  cm 

adhering  to  their  enemies,  giving  them  aid  and  comfort." 
No  person  shall  be  convicted  of  treason  unless  on  the  tes- 
timony of  two  witnesses,  &c.  Thus,  as  was  observed  by 
my  friend  Mr.  Lee  the  other  day,  there  must  be  an  open 
deed  of  war  committed.  Take  away  this,  sir,  and  you  open 
the  door  immediately  to  constructive  treason!  and  what 
has  a  government  to  do,  if  it  determines  to  make  a  sacri- 
fice of  any  devoted  individual?  (I  argue  on  the  abstract 
principle.)  An  insurrection  might  take  place  in  New 
Hampshire,  but  there  is  a  man  in  Georgia,  and  who  has 
never  been  out  of  the  state,  is  charged  with  having  con- 
nexion with  it,  (perhaps  he  is  a  back- woods  man,  going 
out  with  his  gun  a  hunting,  or  there  might  be  some  as- 
semblage of  men,  for  some  innocent,  or  unknown  pur- 
pose;) what  have  the  government  to  do,  in  order  to  impli- 
cate this  man  with  the  insurrection?  It  is  known  that  the 
insurrection  has  existed  and  therefore  it  is  an  overt  act; 
they  prove  that  certain  persons  have  committed  treason, 
or  have  been  guilty  of  insurrection,  and  perhaps  it  can  be 
proved  by  fifty  persons,  but  the  connexion  of  this  man 
with  it  is  unknown  in  Georgia;  however,  being  charged 
there  with  a  connexion,  he  is  carried  away  to  New  Hamp- 
shire: a  jury  is  impannelled  by  the  marshal  of  the  court, 
who  is  an  officer  elected  by  the  government,  and  who 
is  removable  at  pleasure,  or  whenever  he  shall  displease 
them:  what  is  to  be  done?  The  prosecutor  proves  the 
insurrection,  and  then  brings  one  or  two  witnesses  (one 
perhaps  might  be  enough)  to  swear  that  the  person  ac- 
cused was  connected  with  it;  thus,  he  is  convicted  of  levy- 
ing war  against  the  United  States,  in  connexion  with  peo- 
ple he  never  saw,  and  at  a  place  where  he  never  was  in 
his  life.  But,  it  may  be  argued  here,  that  any  man  is  liable 
to  a  false  accusation: — this  is  true:  but  where  is  he  to  be 
tried?  Is  he  to  be  tried  where  the  prosecutor  pleases!  The 
prosecutor  says  that  he  was  connected  with  the  treason, 
but  he  says,  he  can  prove  that  he  never  was  upon  the  spot. 


the  Trial  of  Aaron  Burr.  249 

But  it  seems  that  proof  would  not  avail  him  in  this  crime, 
which  is  contrary  to  all  others,  if  the  gentleman's  doctrine 
is  right:  where  is  the  constitution  during  all  this  time? 
What  safeguard  is  this  to  an  individual?  He  must  conclude 
it  to  be  no  safeguard  to  him,  but  that  he  was  convicted  for 
a  treason  of  which  he  knew  nothing,  in  a  place  where  he 
never  was,  and  with  people  whom  he  never  knew,  or  saw. 
If,  sir,  the  constitution  means  no  more  than  the  gentleman 
pretends,  of  what  avail  is  it  to  us,  or  what  would  it  be  to 
such  a  man?  It  means  nothing. 

But  say  the  gentlemen,  if  this  be  the  case,  a  conspiracy 
to  levy  war  means  nothing,  and  will  not  be  punished  at 
all.  Be  it  so,  sir.  If  the  constitution  did  not  see  fit  to  trust 
the  government  with  it,  be  it  so.  But,  say  they,  are  not 
conspiracies  to  levy  war  punished  in  England?  I  answer 
that  they  are,  but  what  means  conspiracy  to  levy  a  war 
there?  Why  all  the  cases  are  a  conspiracy  to  kill  the  king, 
and  there  is  no  other,  but  that  of  regicides.  Hume's  his- 
tory of  England,  2d  vol.  p.  487,  speaking  of  the  statute  of 
Edward  III.  acknowledges  this  to  be  the  fact,  and  even 
the  ingenuity  of  the  lawyers  of  this  day  are  not  able  to 
prove  that  a  conspiracy  to  levy  war,  is  war  levied,  or  that 
it  ever  meant  any  more  than  a  conspiracy  against  the  life 
of  the  king:  which  I  cannot  presume  will  be  applied  in 
any  American  case. 

Again.  Gentlemen  may  argue  that  their  indictment  will 
support  them.  But,  sir,  they  indict  us  for  doing  the  act, 
and  not  for  conceiving  it.  And,  whatever  the  form  of  their 
indictment  might  be,  it  cannot  operate  in  a  court  of  law 
in  superiority  to  the  constitution  and  laws,  which  know 
nothing  of  aiders,  abettors,  procurers  or  receivers  in  trea- 
son. Therefore  we  shall  contend,  that  the  constitution  and 
laws  of  the  United  States,  and  not  the  English  construc- 
tion attached  to  them,  must  be  the  guide,  whatsoever  in- 
dictment might  have  been  presented. 

Vol.  II.  21 


250  Mr.  JVickhatn's  Speech  on 

But,  sir,  it  will  be  said  that  the  decision  of  the  supreme 
court  in  this  country  is  directly  against  us.  Let  the  opinion 
of  the  supreme  court  speak  for  itself,  and  we  fear  not  to 
depend  upon  that  decision  even.  If  this  opinion  is  to  be 
considered  as  conclusive  authority,  then  the  court  are 
bound  to  support  the  principle  which  shall  be  advanced: 
but  if  they  do,  they  must  support  every  obiter  dictum 
whatever,  that  any  court  shall  establish,  and  particularly 
the  supreme  court.  But  I  never  will  admit  that  a  judicial 
body  can  become  legislators,  and  make  laws;  but  I  will 
admit  of  the  doctrine  that  the  gentleman  advanced  the 
other  day  on  the  subject  of  "  extra  judicial''  opinions. 
This  decision  I  take  to  be  of  the  same  authority  as  though 
the  judges  had  decided  a  point  in  their  chambers,  when 
there  was  no  case  at  issue  before  them.  Now  if  there  was 
a  case  of  a  person  before  them  who  had  levied  war  against 
the  United  States,  surely  there  would  have  been  the  argu- 
ments of  counsel  on  that  case;  but,  I  will  appeal  to  gen- 
tlemen present,  who  were  there,  whether  that  point  was 
ever  touched  by  any  gentleman  of  the  bar,  or  whether  it 
was  not  a  mere  dicta  of  the  court  without  a  point  being  in 
dispute.  That  a  point  of  law  not  being  involved  in,  but 
attached  to  a  case,  is  not  to  be  considered  in  the  way  of  a 
decision,  I  will  appeal  to  all  authoritative  opinions.  I  have 
frequently  heard  Chancellor  Pendleton  say,  that  such  de- 
cisions were  not  to  be  considered  as  authority,  because  the 
point  did  not  turn  upon  the  opinion;  and  because  the  point 
xuas  not  argued,  and  made  without  sufficient  consideration: 
it  was  merely  stated  arguendo. 

Sir,  I  will  take  an  instance  of  this  mere  dicta,  as  a  prac- 
ticable illustration,  as  furnished  by  the  court  in  the  insur- 
reetion  in  Pennsylvania.  We  all  know,  that  there,  aiders, 
abettors,  and  procurers  were  not  sought  for.  I  will  not 
mention  names,  because  they  are,  perhaps  deservedly,  kept 
out  of  view.  But  those  who  were  the  movers,  we  know, 
were  never  punished,  nor  ever  indicted,  whilst  the  actors, 


the  Trial  of  Aaron  Burr.  251 

and  those  only — those  poor  men  who  were  found  in  it, 
and  not  those  who  set  it  on  foot,  were  punished,  or  tried. 

I  must  here,  sir,  indulge  the  feelings  of  my  own  mind 
and  declare  that  it  is  not  merely  the  case  of  my  client  that 
I  consider  it  necessary  to  take  up  so  much  of  your  ho- 
nour's time  about;  while  I  feel  for  the  safety  of  my  client, 
I  must  express  my  feelings  for  all  the  citizens  of  the 
United  States,  and  for  posterity.  Yes,  sir,  I  feel  for  my 
children  and  for  my  country,  because  the  safety  of  all  our 
posterity,  and  our  fellow  citizens,  is  concerned.  There  is 
no  safety,  and  our  government  is  a  mere  tyranny,  if  they 
are  to  have  the  power  of  doing  what  they  please  in  a  court 
of  justice.  I  see,  I  feel  for  the  danger  to  which  my  pos- 
terity will  be  exposed;  and  it  is  upon  this  ground,  and  this 
only,  that  I  have  indulged  and  shall  continue  to  indulge 
those  feelings  which  the  case  appears  to  demand.  My  cli- 
ent, sir,  has  other  grounds;  upon  which  I  believe  I  shall 
be  enabled  to  prove  to  this  court,  that  it  is  impossible  for 
the  attorney  to  succeed  in  this  prosecution. 

I  have  now,  may  it  please  the  court,  gone  through  the 
point  which  I  contended  for,  not  as  it  related  to  my  client, 
but  upon  the  abstract  principle.  My  argument  was  not  in- 
tended to  refer  to  the  government,  nor  to  any  part  of  it: 
as  a  government  I  respect  it,  and  trust  that  I  ever  shall: 
it  is  to  the  principle  alone,  I  referred,  and  not  with  any 
relation  to  persons  or  political  principles. 

I  will  now  go  on  to  say  that,  even  admitting  the  con- 
stitution to  be  different  from  what  I  suppose  it  to  be,  this 
charge  of  treason  cannot  be  supported  by  the  present  in- 
dictment. I  take  it  to  be  a  fact,  that  the  evidence  must 
support  the  indictment;  and  therefore  I  contend  that  the 
prosecutor  must  prove  the  facts  as  laid  in  the  indictment. 
And  that  it  being  admitted  that  Mr.  Burr  was  not  pre- 
sent at  the  time  or  place  laid  in  the  indictment,  they  must 
fail  in  their  prosecution.  That  conspiring  to  levy  war  is  all 


252  Mr.  Wickharri's  Speech  on 

that  they  can  prove;  but  for  the  acts  of  others,  under  our 
constitution  and  laws,  no  man  can  be  punished;  and  that 
proving  the  fact  to  exist  merely,  can  be  no  proof  against 
any  individual,  without  those  facts  can  be  brought  home 
to  him.  This  is  not  founded  upon  arbitrary  principles, 
but  upon  the  imprescribable  laws  of  right,  let  the  crime 
charged  be  what  it  may.  The  indictment,  let  the  charge 
be  for  what  it  may,  should  identify,  minutely,  the  crime 
charged,  and  that  nicety  should  be  strictly  conformed  to 
by  the  court;  but  our  objection  to  this  indictment  does 
not  relate  to  that  critical  nicety,  but  to  a  flagrant  inconsist- 
ency. It  may  have  been  a  subject  of  objection  that  we 
did  not  make  this  motion  sooner,  but  it  was  impossible 
that  we  could  until  we  had  the  opportunity  to  see  the  in- 
dictment. It  was  impossible  that  we  could  know  the  facts 
that  the  prosecutor  had  intended  to  prove:  he  did  not 
know  but  it  was  intended  to  be  proved  that  he  was  at 
Blannerhasset's  island  where  the  indictment  is  laid.  But 
knowing  that  he  was  not  there,  he  came,  perfectly  satisfied 
that  nothing  but  perjury  could  produce  a  conviction,  since 
he  knew  that  no  person  could  levy  war  against  the  go- 
vernment without  he  was  personally  present.  How  could 
he  expect  to  be  charged  through  third  persons  to  commit 
this  crime.  Now  the  wording  of  this  indictment  is  so  spe- 
cific as  to  charge  Col.  Burr  with  having  committed  this 
treason  at  Blannerhasset's  island,  where  he  is  acknow- 
ledged not  to  have  been;  and  "  with  divers  persons  un- 
known;" and  yet  now  it  is  charged  that  he  was  known 
to  be  connected  with  Mr.  Blannerhasset,  Mr.  Smith  and 
Mr.  Tyler! 

It  will  be  objected  that,  if  he  is  or  is  not  guilty,  he  must 
know  it,  and  therefore  it  is  of  no  importance  whether  there 
is  a  specification  in  the  indictment  or  not.  Why,  sir,  were 
this  doctrine  true,  it  would  prove  too  much;  it  would  be 
even  saying  that  there  was  no  occasion  for  an  indict- 


the  Trial  of  Aaron  Burr.  253 

ment  at  all?  Now,  I  think  it  might  be  possible  that  a  man 
might  commit  an  act,  and  not  know  it  at  all,  according  to 
this  mode  of  reasoning.  I  really  believe  that  Col.  Burr 
knew  nothing  of  these  men  being  at  Blannerhasset's 
island;  but  at  any  rate  it  has  not  been  proved  that  he  knew 
any  thing  of  their  being  there.  Now,  sir,  how  is  he  to  be 
informed  of  these  things?  Is  it  to  be  by  rumour  and  public 
clamour;  or  is  it  to  be  by  a  specification  in  the  indictment 
itself?  I  presume  the  latter,  but  even  that  does  not  declare 
that  he  is  to  be  tried  for  being  connected  with  others  who 
had  levied  war  at  that  place,  but  that  he,  together  with 
certain  other  persons  unknown,  did  commit  treason  at  a 
certain  place  (where  he  was  not)  by  levying  war,  (when, 
in  fact,  no  war  was  levied.) 

But,  sir,  there  is  another  and  an  important  defect  in  this 
indictment;  the  proper  wording  of  an  indictment  for 
treason  in  levying  war  should  have  the  word  "public" 
war  inserted;  but,  on  the  contrary,  the  indictment  does 
not  even  pretend  to  specify  that  this  was  a  public  war. 
The  words  are,  that  he  did  "  ordain,  prepare  and  levy 
war,"  &c.  So  that  the  act  might  have  been  perfectly  pri- 
vate. (To  be  sure  the  gentleman  does  not  pretend  to 
prove  that  it  was  public,  since  Mr.  Blannerhasset's  groom, 
nor  any  other  person  who  was  present,  knew  any  thing 
about  a  war,  or  warlike  appearance  in  the  persons  who 
were  at  the  island.)  But  that  it  is  necessary  to  insert  the 
words  "  public  war"  in  the  indictment,  I  refer  to  prece- 
dents, 8  St.  Tr.  219;  9  St.  Tr.  543;  Tremain's  Pleas; 
and  Fries's  Trial,  17:  in  all  of  which,  and  in  every  other 
case,  that  word  is  inserted  as  a  part  of  the  charge.  In 
every  correct  indictment,  the  prosecutor  must  not  only 
charge  the  levying  war,  and  the  particular  overt  act,  but 
that  it  is  public  and  known,  or  else  it  is  no  war  at  all. 
Perhaps  the  attorney  might  not  have  known  what  was  in 
the  indictment;  perhaps  he  might  have  entrusted  it  to 


254  Mr.  Wickham's  Speech  on 

his  clerks  by  setting  a  book  of  precedents  before  them. 
If  not  so,  was  it  done  to  make  it  soft  to  the  grand  jury, 
that  they  should  not  be  excited  to  enquire  what  public 
war  had  been  committed.  I  will  not,  however,  presume 
to  say  that  it  was  omitted  by  design:  it  might  have  been 
by  accident.  But,  sir,  where  is  Col.  Burr  to  go,  to  en- 
quire, what  public  war  had  been  committed  in  which  he 
could  be  involved,  so  as  to  produce  a  charge  of  treason? 
There  could  be  no  ground  upon  which  he  could  conjec- 
ture it.  In  short,  he  had  no  right  to  conjecture,  but  to 
have  had  it  specified,  agreeable  to  perpetual  precedent, 
for  what  charge  he  was  indicted. — These  observations 
are  made  to  show  that  there  is  no  ground  to  presume  that 
we  had  any  knowledge  of  the  act  that  is  supposed  to  have 
been  committed. 

I  come  now  to  enquire  into  the  nature  of  precedents 
in  relation  to  specification  in  indictments.  I  know  of  no 
cases  where  special  indictment  could  be  dispensed  with, 
except  that  of  Sir  N.  Throgmorton,  in  the  time  of  Mary  I. 
recited  in  1  St.  Tr.  73,  and  cases  under  judge  Jeffries,  of 
which  we  can  find  nothing  certain;  or  if  certain,  they 
surely  could  not  be  called  up  as  precedents  at  this  period, 
nor  in  this  country.  Somerville's  case  in  Anderson's  Re- 
ports, p.  186,  called  for  an  argument  upon  this  point, 
wherein  it  was  finally  settled,  after  great  consideration, 
that  the  form  ought  to  be  special  in  the  indictment,  where 
there  was  a  conspiracy  to  do  any  act  of  treason.  This  in- 
dictment was  for  conspiring  to  kill  the  king. 

Mr.  W.  here  read  1  Hale's  Pleas,  p.  280,  and  referred 
to  the  act  of  Henry  VIII.  to  prove  that  there  could  be  no 
such  a  thing  as  a  person  committing  treasons  of  the  de- 
scriptions there  recited  without  a  personal  presence,  and 
concluded  that  it  was  as  physically  impossible  for  Mr. 
Burr  to  have  committed  this  treason  at  Blannerhasset's 
ishmd,  he  not  being  personally  present,  but  in  Kentucky 


the  Trial  of  Aaron  Burr.  255 

at  the  time.  That  it  was  an  immutable  rule  of  nature, 
that  one  body  could  not  be  in  two  places  at  the  same 
moment;  and  it  was  admitted  by  the  prosecution  that  the 
accused  was  in  Kentucky  at  the  moment  of  this  alleged 
treason  in  Wood  county,  Virginia.  The  overt  act  may 
or  may  not  constitute  the  treason,  but  of  that,  the  cir- 
cumstances stated  in  the  indictment  ought  to  show;  and 
the  evidence  produced  upon  that  indictment  ought  to  be 
conformable.  For  instance:  a  person  indicted  in  England 
might  be  for  "  rebellion."  Now  he  might  have  been  con- 
cerned in  the  rebellion  of  1715,  and  likewise  in  that  of 
1745:  he  might  have  been  tried  and  acquitted  of  that  in 
1715,  or  he  might  have  been  only  in  that  of  1745.  Now, 
surely,  for  the  sake  of  giving  him  warning  of  what  he 
would  have  to  meet,  it  is  necessary  to  specify  the  parti- 
cular act  or  acts  which  are  charged;  but  lay  as  many  overt 
acts  as  you  will  in  the  indictment,  it  is  but  one  war;  and 
the  overt  acts  are  mentioned  by  way  of  specification  of 
that  war,  let  the  number  be  what  they  may;  and  the  evi- 
dence upon  that  specification  is  offered  to  prove  the  war. 
So  in  cases  recited  of  treason  by  conspiring  the  death  of 
the  king,  you  charge  the  conspiracy,  and,  in  order  that 
the  party  should  know  how  to  form  his  defence,  you  state 
the  overt  acts.  But,  sir,  if  there  are  twenty  overt  acts 
laid,  there  can  be  no  reason,  from  that,  that  he  should  be 
tried  twenty  times  over,  because  it  all  must  point  to  the 
same  treason. 

But,  in  any  event,  no  man  is  to  be  made  responsible  for 
the  acts  of  others;  or  if  he  is,  he  ought  at  least  to  be  told 
that  he  was  concerned  in  the  acts  of  others.  They  charge 
Col.  Burr  with  levying  war  with  persons  unknown.  Now, 
sir,  we  are  charged  with  acting  with  those  unknown  per- 
sons by  relation,  and  when  we  were  not  there.  This  is 
contrary  to  common  reason  and  propriety.  English  pre- 
cedents in  indictments  arc  directly  contrary  to  this:  be- 


256  Mr.  Wickham's  Speech  on 

cause,  when  persons  were  connected  with  others,  those 
others  are  always  named.  See  1  Tremaine's  Pleas,  279 — 
Gerrard's  case;  James  Duke  of  Monmouth's  case,  Hamb- 
den's  case,  307,  ib.  2  vol.  do.  281.  He  wit's  case;  Mor- 
daunt's  case,  291  ib.  4  St.  Tr.  132,  Cornishe's  case. 
These  all  conformed  to  the  rule  of  law,  that  where  the 
charge  was  laid,  all  the  correspondent  circumstances 
should  be  received,  or,  otherwise,  no  proof  of  those  cir- 
cumstances should  be  adduced.  What  case  can  it  be  con- 
ceived to  be  more  necessary  to  make  a  specific  charge  in 
than  in  the  present?  But,  on  the  contrary,  we  are  only 
charged  with  others,  by  relation;  and  yet,  they  tell  us  that 
those  others  were  unknown!  But,  they  may  say  that  we 
know  them  now.  How  can  we  know  them?  I  beg  the 
court  to  observe  to  what  a  latitude  such  a  doctrine  might 
be  carried.  An  act  of  treason  might  be  committed  seve- 
ral times  at  one  spot — say  Blannerhasset's  island — not  a 
private  war,  like  this,  but  a  public  war:  Now,  could  Col. 
Burr  tell  which  of  these  acts  of  war  he  was  meant  to  be 
charged  with,  or  with  whom  he  was  supposed  to  be  con- 
nected, by  such  an  indictment  as  this?  He  cannot  be  pre- 
pared to  answer,  when  he  knows  not  what  will  be  put  to 
his  charge.  Gentlemen  might  say  this  is  an  extravagant 
supposition,  but  it  is  not  so,  if  viewed  in  a  proper  light. 
Suppose  instead  of  the  spot  being  on  Blannerhas  .et's 
island,  it  was  an  English  case,  and  charged  in  London, 
where  these  things  frequently  happen,  and  half  a  dozen 
riots  might  have  happened  in  a  short  period,  say  a  year: 
suppose  an  indictment  to  be  brought  against  a  person  for 
committing  a  treason  with  "  persons  unknown:"  now 
how  is  it  possible  that  the  person  charged  should  know  to 
which  of  those  acts  the  evidence  was  intended  to  be 
brought,  or  how  is  he  to  meet  the  charge  by  counter  testi- 
mony? I  submit,  therefore,  that  no  evidence  of  the  acts 
of  third  persons  to  charge  him  with  levying  war  can  be 


the  Trial  of  Aaron  Burr.  257 

received,  when  it  is  admitted  that  he  was  not  present  at 
the  war,  but  was  stated  to  be  present  by  agency;  and  that 
this  indictment  cannot  be  sustained. 

But  this  argument  has  another  bearing.  Once  establish 
it  as  a  principle,  that  a  special  indictment  is  necessary: 
that  you  are  obliged  to  charge  the  matter  specially;  and 
are  not  left  at  large  to  a  general  indictment  "  that  you  did 
levy  war,"  and  then  the  argument  of  the  constitutionality 
applies  at  once,  because  you  fall  exactly  within  the  rule 
of  receivers  after  the  fact;  and  are  not  made  liable,  since 
only  acts  can  be  construed  to  come  within  our  doctrine  of 
treason.  The  indictment,  even  in  England,  must  be  spe- 
cial, although  accessorial  treasons  exist:  how  much  more 
so  then  is  it  necessary  to  have  a  special  indictment  in  this 
country?  I  will  venture  to  declare  that  without  it,  no  in- 
dictment can,  on  any  account,  be  sustained. 

Ch.  Justice.  But  may  not  the  levying  of  war,  generally, 
be  charged;  and  then  the  overt  acts  be  specifically 
charged? 

Mr.  Burr.  It  is  admitted,  sir,  that  I  might  be  charged 
generally  in  that  sense,  if  I  had  been  at  the  spot:  but  this 
brings  us  to  the  constitutional  question.  We  contend  that 
it  is  out  of  the  pale  of  the  constitution;  and  if  so,  there 
must  be  a  demurrer,  even  had  it  been  specified  that  such 
a  war  had  existed,  and  that  I  was  at  another  place,  at  the 
time. 

Mr.  JVickham.  It  is  admitted  that  such  a  charge  would 
be  necessary,  even  in  England,  but  it  is  more  necessary 
here.  Now,  sir,  if  it  is  proved  that  a  special  indictment 
is  necessary,  then  no  indictment  can  be  good  that  is  not 
special. 

There  is  another  inference  to  be  drawn  from  this  argu- 
ment: that  if  it  is  specially  laid,  it  must  be  laid  to  have 
been  committed  at  the  place  where  the  act  was  done:  not 

Vol.  II.  2  K 


258  Mr.  Wickham }s  Speech  on 

the  act  of  levying  war  itself,  but  that  which  makes  the 
person  a  traitor  by  relation:  the  act  of  relation  should  be 
laid  where  the  assent,  or  procurement  took  place.  If  a 
person  is  guilty,  it  must  be  done  by  the  person  himself, 
and  at  some  certain  place  or  places. 

It  may  be  objected  that  all  are  principals  in  treason, 
and  therefore  he  may  be  supposed  to  be  present  by  rela- 
tion, as  a  participant  in  the  act.  This  doctrine  would 
prove  too  much:  it  would  prove  that  accessories  after  the 
crime,  being  principals,  must  be  tried  where  the  crime 
charged  was  not  committed;  this  is  contrary  to  the  genius 
of  our  law,  and  therefore  is  inadmissible.  Lady  Lisle's 
case  may  perhaps  be  termed  a  precedent,  but  we  have  no 
objection  to  the  gentleman  taking  the  benefit  of  it.  If  the 
treason  is  proved,  and  that  doctrine  be  contended  for,  it  is 
incumbent  on  them  to  admit  of  another  fact,  to  wit:  that 
one  body  can  be  in  two  places  at  the  same  identical  time. 
See  4  Hume's  Hist.  Eng.  388.  Lady  Lisle's  prosecution, 
and  for  which  she  was  executed  by  order  of  judge  Jef- 
fries, was  for  "  harbouring  and  concealing  a  Mr.  Hicks, 
a  Presbyterian  minister,  of  the  duke  of  Monmouth's 
party,  though  he  was  not  attainted;  and  his  name  was  not 
in  the  proclamation — and  he  was  one  who  was-  a  stranger 
to  her."  Sir  Nicholas  Throgmorton's  case  is  for  aiding 
and  assisting  in  Wyatt's  rebellion,  in  1544,  1  Mary,  be- 
fore Bromley,  C.  J.  K.  B.  1  St.  Tr.  68,  &c.  The  war 
was  levied  in  Surrey,  and  he  was  marching  for  London, 
but  before  he  got  to  Temple  Bar,  (the  entrance  to  the 
city)  his  followers  all  quitted  him,  and  he  was  taken.  He 
was  tried  at  Guild  Hall,  in  Middlesex.  This,  to  be  sure 
is  of  the  same  nature  as  the  present:  the  war  was  com- 
menced in  Kent  or  Surrey,  and  he  was  taken  in  Middle- 
sex. But  can  gentlemen — will  they  presume  to  built  a 
doctrine  upon  such  data,  where  such  men  as  Coke, 
Bromley  or  Jeffries  preside;  and  in  such  days  as  those  of 


the  Trial  of  Aaron  Burr.  259 

Mary  and  Charles  II.?  This  argument  would  prove  that 
precedents  brought  from  any  time,  and  actions  done  any 
where,  might  be  received  as  precedents?  It  is  clear,  sir, 
that  the  rules  laid  down  in  the  English  books  are  in  direct 
opposition  to  such  a  doctrine.  Now,  at  common  law,  if  a 
felony  was  committed  in  one  county  by  A,  and  B  was  an 
accessory  to  it,  in  another,  B  could  not  be  tried  at  all, 
1  Hale's  P.  C.  ch.  57,.  p.  623.  It  is  not  pretended  how"- 
ever  that  an  act  could  not  attach  in  such  a  case,  if  it  can 
be  found,  and  therefore,  if  it  is  punishable  at  all,  our  con- 
stitution and  laws  must  point  it  out,  since  common  law 
can  have  no  operation.  Herty's  Digest  59.  art.  8.  amend, 
const.  "  In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an  impar- 
tial jury  of  the  state  and  district  -wherein  the  crime  shall 
have  been  committed"  &c.  Now,  according  to  this  un- 
erring rule,  if  Col.  Burr  had  committed  an  offence,  where 
was  he  to  be  tried,  but  where  he  advised  or  assented — if 
any  where?  Now,  this  doctrine  was  not  meant  to  be  an 
illusory  thing,  or  a  mere  set  of  words,  but  an  essential 
doctrine.  And  therefore  a  citizen  of  Georgia,  for  a  crime 
charged  in  Georgia,  cannot  be  tried  in  New-Hampshire, 
nor  any  where  else,  but  in  the  district  of  Georgia. 

But,  sir,  if  all  these  points  are  against  us,  (which  I  can- 
not even  apprehend)  there  is  one  in  reserve,  upon  which 
we  cannot  fail;  and  had  the  case  been  of  less  importance, 
had  I  not  felt  it  my  duty  to  state  what  I  have,  I  should 
have' thought  it  fully  sufficient  to  all  the  purposes  of  this 
case,  to  have  placed  a  full  reliance  on  this  point,  and  this 
only. 

It  is  this:  that  if  aiders,  procurers  or  abettors  of  treason 
are  punishable  at  all,  yet  their  guilt  is  derivative;  and  can 
only  be  established  by  legal  proof  of  guilt;  and  there  is  no 
legal  proof  of  guilt  short  of  this:  that  the  principals  are 
guilty;  *md  that  a  record  of  their  conviction  be  produced 


260  Mr.  Wickharrfs  Speech  on 

in  court.  And  then,  only,  their  connexion  with  the  con* 
victed  person  will  come  in. 

I  should  not  have  brought  forward  this  point,  and  it 
was  far  from  the  wish  of  my  client  to  have  mentioned  it, 
but  from  his  being  charged  as  an  accessory,  in  the  indict- 
ment. It  would  have  been  an  act  of  justice  due,  not  only 
to  him,  but  to  the  gentlemen  who  are  also  charged,  to 
have  withheld  this  point,  had  they  not  been  indicted,  and 
had  not  the  attorney  take.i  the  course  which  he  has  thought 
proper  to  pursue.  In  point  of  propriety,  therefore,  they 
ought  to  have  been  first  tried.  Messrs.  Blannerhasset, 
Smith  and  Tyler,  (who  are  respected,  and  very  deserved- 
1\ )  who  are  charged  as  having  been  present  at  the  scene 
and  time  laid  in  the  indictment  of  Col.  Burr,  are  not  held 
up  to  the  United  States  by  the  peculiar  epithets  of  "  arch 
traitors.'*  It  has,  to  be  sure,  been  held  up  to  the  public, 
that  they  should  be  punished;  but  they  would  have  as- 
suredly been  more  disposed  to  prosecute  them  with 
activity,  if  they  had  believed  that  their  conviction  would 
have  produced  the  comiction  of  Col.  Burr.  These  gen- 
tlemen therefore  owe  not  their  safety  to  the  tenderness  of 
the  prosecution.  But,  sir,  though  I  do  not  attribute  their 
safety  to  any  such  a  source,  yet,  I  am  supported  by  law 
to  say  that  except  there  be  a  record  of  the  conviction  of 
some  person  who  was  a  principal,  in  the  treason,  it  is  im- 
possible to  proceed  in  the  trial  of  Col.  Burr,  who  is 
charged  as  an  aider  and  assister  only,  or  to  produce  any 
evidence  against  him. 

If  I  am  right  here,  sir,  the  case  is  at  an  end.  This  is 
the  rule  in  all  felonies,  of  whatever  nature.  Receivers, 
aiders,  or  accessories,  of  whatever  description,  cannot  be 
tried  (and  it  is  so  in  treason)  until  after  the  principal  shall 
be  tound  guilty,  and  a  record  be  produced  of  his  convic- 
tion. But  gentlemen  will  uige  that  this  doctrine  does  not 
ipply  to  treason,  because  there  are  no  accessorieswn  trea- 


the  Trial  of  Aaron  Burr.  261 

son,  but  that  all  are  principals  before  the  fact.  The  rule 
is  general,  and  applies  to  accessories,  as  well  those  after, 
as  those  before  the  fact.  [Mr.  W.  in  supporting  his  po- 
sition, referred  to  4  St.  Tr.  130  and  137,  and  to  the  acts 
on  that  subject,  of  Wm.  III.]  But  whatever  accessories  it 
might  apply  to,  it  was  always  necessary  to  show  the  con- 
viction of  the  principal,  to  support  the  accessorial  guilt. 
Lady  Lisle  was  convicted,  attainted  and  executed,  but  the 
principal  had  been  tried  and  convicted;  but,  this  being  a 
lady  of  fortune  and  family,  in  the  reign  of  king  William, 
there  was  a  reversal  of  the  attainder. 

Now,  as  aiders  and  abettors  after  the  fact  are  as  much 
principals  as  those  before  the  fact,  the  same  rule  applies 
with  equal  force;  and  therefore  the  guilt  of  the  accused  in 
both  instances,  make  a  consequential  crime  in  accessories; 
but  that  guilt  must  first  be  proved.  For  certainly  if  the 
crime  never  was  committed,  there  never  can  be  accesso- 
ries to  a  crime.  1  Lord  Hale  613,  is  an  authority  upon 
the  true  mode  of  reasoning  on  this  point:  for  those  cer- 
tainly who  committed  treason  in  the  first  degree  ought  to 
be  tried  before  those  who  are  charged  in  the  second  de- 
gree, else  it  might  be  possible  that  the  man  who  is  charged 
as  second,  might  be  convicted,  whilst  he  who  is  charged 
in  the  first  degree  might  be  acquitted.  Now  place  this 
doctrine  to  the  present  case:  Col.  Burr  is  charged  with 
treason  as  the  aider  and  abettor  of  Mr.  Blannerhasset,  &c» 
Mr.  Blannerhasset  is  not  tried,  and  it  is  uncertain 
whether  he  will  be  convicted  when  he  shall  be  tried  (if 
ever)  and  therefore  Mr.  Burr,  who  is  charged  as  an  ac- 
cessory, might  be  convicted,  whilst  the  principal  might 
be  acquitted.  The  attorney  ought  therefore  to  prove^ 
and  he  must  prove,  first,  that  the  act  was  done,  before  he 
can  be  let  in  to  give  any  evidence  whatever  as  to  who 
was  concerned  with  it,  especially  as  to  the  persons  charged 
in  the  second  degree.  1  Anderson's  Reports,  109.  2  Hale 


262  Mr.  Wickham's  Speech  on    > 

223.  So,  referring  to  Somerville's  case,  where  the  prin- 
cipal was  first  tried,  and  then  the  accessory,  Lord  Hale 
thinks  it  a  regular  course,  in  indictments,  first  to  state 
specially  that  the  person  was  an  accessory,  for  nothing  can 
be  got  by  the  prosecutor  in  not  stating  it,  since  whether 
the  accused  was  a  receiver  after,  or  an  aider  before  the 
fact,  he  cannot  be  guilty,  if  the  principal  is  innocent. 
Therefore,  to  prove  that  Col.  Burr  was  guilty,  you  must 
first  prove,  conclusively,  that  Mr.  Blannerhasset  was 
guilty.  But,  sir,  this  objection  meets  the  case  at  its 
threshold;  and  you  cannot  proceed  farther  but  by  pro- 
ducing the  conviction  of  the  parties  who  were  present, 
or  those  who  were  present  at  the  time  of  the  treason 
charged.  See  Foster,  341  to  346.  Now,  justice  Foster 
contends,  that,  in  ever}r  derivation  of  treason,  there  should 
be  evidence  of  the  conviction  of  the  principal.  It  will  be 
observed  that  he  goes  at  large  into  the  question;  and  that 
all  the  exceptions  which  are  made,  relate  to  compassing 
the  king's  death,  in  which  there  can  be  no  accessories, 
because  all  are  principals.  1  East,  100.  I  do  not,  how- 
ever, pretend  to  quote  East  as  an  authority,  generally; 
but,  because  his  doctrine  on  this  subject  is  well  sup- 
ported. There  is  some  little  inaccuracy  in  him,  which 
Hale  or  Foster  would  have  avoided. 

As  to  all  being  principals  in  treason; — we  know  that  in 
the  treason  of  compassing  the  king's  death,  all  are  princi- 
pals; but  there  are  other  treasons  in  the  English  rule;  if 
one  advise  or  encourage  another  to  do  the  act,  he  would 
be  a  principal  in  that  species  of  treason — but,  if  the  other 
should  forbear  to  commit  that  act,  he  would  be  innocent. 
This,  as  the  authority  states,  "  depends  entirely  upon  the 
question  whether  the  person  (the  principal  person)  has, 
or  not,  been  guilty  of  the  treason" — which,  can  only  be 
legal  evidence  by  his  (the  principal's)  conviction. 

We  come  here,  sir,  to  defend  ourselves  against  the  in- 


the  Trial  of  Aaron  Burr.  263 

dictmcnt,  which  is  supposed  to  inform  us  what  is  against 
us;  and  to  what  charges  we  have  to  answer.  We  rely 
upon  legal  evidence  in  the  case;  and  we  ought  to  fear  no 
other.  Anderson,  109,  in  reference  to  Somerville's  case,  is 
express  upon  the  subject;  and  there  the  procurers  could 
not  be  convicted.  This  turns  upon  the  very  point,  and  the 
ground  of  decision  in  this  case  will  prove  to  your  honours 
that  the  ground  we  have  taken  is  correct,  as  to  specifica- 
tion. 

There  is  one  writer,  however,  who,  in  general  terms, 
has  stated  it  to  be  somewhat  otherwise.  Leech's  Haw- 
kins, 2  vol.  ch.  29.  sect.  2.  p.  440,  in  the  note.  He  lays 
down  the  general  rule  that,  in  treason,  all  are  principals. 
But,  however,  this  is  happily  characterized  only  to  re- 
spect the  death  of  the  king:  which,  consequently,  cannot 
refer  to  treason  in  this  country.  Whether  we  refer  to 
Foster,  Hale,  Hawkins,  East,  or  any  other  writer,  we 
shall  find  that  the  agency  can  only  be  established  by  proof 
of  the  guilt  of  the  principal,  in  his  conviction.  And  the 
authorities  all  agree  in  this  point,  supported  as  it  is  by 
reason  and  by  justice:  and  it  is  beyond  all  possible  doubt, 
because  the  authorities  declare  uniformly  in  our  favour. 
If  it  be  answered  that  there  is  no  adjudged  case  that  is 
applicable  to  our  argument,  we  reply  that  we  are  at  least 
upon  equal  terms  with  our  adversaries,  and  if  there  are 
any,  they  all  apply  to  receivers  and  aiders  after  the  fact, 
which  are  not  applicable  to  treason  in  this  country. 

I  have  gone  through  all  the  points,  sir,  that  I  consider 
necessarily  attached  to  this  subject.  There  is  another 
point  however,  which  on  account  of  its  immense  impor- 
tance, not  particularly  respecting  this  case,  but  all  others 
of  this  nature  that  may  come  before  a  court.  It  is,  that 
before  any  evidence  can  be  given — (even  admitting  every 
one  of  these  points  to  be  against  us)  towards  the  con- 
nexion or  participation  of  Col.  Burr  in  the  treason  said 


264  Mr.  Wickham's  Speech  on 

to  have  been  committed,  the  overt  act  of  treason  itself 
must  be  proved.  And  of  that  the  court  must  judge.  Upon 
this  ground  we  fear  not  to  meet  the  testimony:  admitting 
all  that  has  been  said:  even  admitting  the  declarations  of 
that  unhappy  wretch  who  was  brought  here  to  give  testi- 
mony respecting  the  transactions  on  Blannerhasset's 
island,  who  was  so  ignorant  that  he  could  not  even  name 
the  month  when  he  was  there;  and  who  was  so  unprinci- 
pled as  to  declare,  at  one  time,  that  arms  was  levelled  at 
Gen.  Tupper,  when  no  one  who  was  present  besides  knew 
of  such  a  thing,  and  when  himself  even  had  differently 
related  it.  Admitting  his  testimony,  even,  to  the  fullest 
extent,  and  that  (if  the  gentlemen  please)  it  proves  an  act 
of  war,  yet  this  is  a  solitary  witness,  and  the  act  and  con- 
stitution require  that  there  should  be  two  witnesses  to 
produce  a  conviction  in  cases  of  treason.  But  if  all  of  it  is 
believed,  we  seriously  declare  that  no  part  of  the  transac- 
tion bore  the  least  semblance  of  war.  Why,  sir,  there 
really  was  a  smile  on  the  countenance  of  every  gentleman, 
except  the  prosecutor,  when  they  found  what  slender  evi- 
dence he  had  to  depend  upon  to  support  the  charge  of 
levying  public  war,  or  any  war  at  all. 

Here  Mr.  Wickham,  enlarged  upon  the  nature  of  deri- 
vative guilt,  and  insisted  that  before  there  was  derivative 
guilt  committed,  there  must  necessarily  be  a  conviction 
of  the  principal:  but  here  there  had  not  been  an  attempt 
to  bring  forward  the  guilt  of  Mr.  Blannerhasset,  who,  to 
prove  Mr.  Burr  guilty,  must  at  least  have  been  tried  first. 
He  quoted  2  Hawkins's  Pleas,  440.  ch.  29.  sect.  2.;  Fos- 
ter, 364.  5.;  2  Hawkins,  ch.  29.  sect.  47,  in  the  note. 

He  next  proceeded  upon  the  point  last  recited,  which, 
if  all  the  facts  were  proved,  must  militate  against  the  pro- 
secution. Now,  sir,  continued  he,  let  us  suppose  that  no 
evidence  whatever  could  be  produced  against  Mr.  Blan- 
nerhasset, to  prove  his  guilt,  how  then  can  any  evidence 


the  Trial  of  Aaron  Burr.  265 

produce  the  conviction  of  Mr.  Burr,  whose  guilt,  accord- 
ing to  this  indictment,  must  depend  upon  the  guilt  of  the 
other.  What,  sir,  has  been  proved?  a  friendly  meeting  of 
a  few  adventurers,  in  a  land  speculation,  on  Blannerhas- 
set's  island!  Nothing  that  was  done  there,  had  the  least 
appearance  of  war,  by  any  testimony  that  has  been  given, 
or  that  is  pretended:  for  it  has  no  bearing  whatever  on  the 
charge.  What  can  evidence  of  persons  being  in  posses- 
sion of  arms  amount  to?  Now,  all  the  arms  that  we  hear 
any  thing  about  are  a  few  rifles;  and  a  few  "  shot  guns," 
or  fowling  pieces.  These  are  not  necessarily  military 
weapons — muskets  and  bayonets  are. 

Now,  sir,  let  us  take  a  view  of  the  nature  of  the  coun- 
try. The  inhabitants  are  almost  in  the  continual  practice 
of  killing  game,  and  every  man  has  his  rifle  or  his  fowl- 
ing piece.  This  is  no  more  extraordinary,  or  evidence  of 
evil  design,  than  would  be  the  possession  of  a  knife  or  a 
sword.  Consequently,  a  number  of  persons  meeting  to- 
gether, for  such  a  purpose  as  these  men  were  proved  to 
be,  having  such  articles  with  them,  cannot,  for  that,  be 
called  a  warlike  assembly.  If  in  England  a  number  of 
men  with  arms  of  any  kind  were  to  be  found  together,  it 
would  be  thought  extraordinary;  and  would  excite  suspi- 
cion, because  it  is  not  customary  for  people  to  carry  guns; 
but  the  possession  of  pistols,  either  here  or  there,  would 
not  create  any  suspicions.  These  circumstances  are  no 
more  evidence  of  a  military  assemblage  to  subvert  the 
government  by  force,  than  if  the  people  had  not  been 
there  at  all:  and  it  proves  nothing  in  relation  to  the 
case.  What,  then,  is  to  be  the  rule?  Why,  sir,  there 
must  be  evidence  of  a  treasonable  assemblage.  For  it 
might  be  proved  to  the  court  that,  in  point  of  fact,  it  is  an 
honest  assemblage. 

It  will  be  said,  on  the  other  side,  that  if  the  court  un- 
dertake to  judge  upon  these  facts,  they  will  invade  the 

Vol.  II.  2L 


266  Mr.  JVickham's  Speech  on 

province  of  the  jury.  But  it  is  not  the  jury  alone  who 
are  to  judge  of  the  facts.  The  court  may  direct  the  jury- 
in  criminal,  as  well  as  in  civil  cases,  to  find  a  special  ver- 
dict. The  facts  must  be  applied  to  the  case;  and  the  court, 
as  well  as  the  jury,  have  a  right  to  find  on  the  facts.  The 
weight  of  evidence  must  undoubtedly  be  decided  by  the 
jury;  but  of  its  relevancy,  it  is  the  province  of  the  court 
to  decide. 

A  number  of  cases  have  been  quoted  in  another  branch 
of  this  case  to  prove  the  fact  above  adduced.  See  Deacon's 
case,  20  Geo.  II.  and  Wedderburne's  case.  The  facts 
must  first  be  proved,  and  "  that  being  done,  acts  of  trea- 
son tending  to  prove  the  overt  acts  laid,  though  done  in 
a  foreign  country,  may  be  given  in  evidence."  M'Nally, 
505.  9  St.  Tr.  558.  Fost.  9.  But  who  is  to  decide  upon 
this,  the  jury?  No,  sir,  but  the  court;  and  it  must  neces- 
sarily be  the  court.  So  it  is  in  civil  cases:  A.  employed 
B.  to  make  a  contract  for  him.  Here  is  an  agency.  Now 
if  a  suit  commences  that  respects  the  agent,  the  agency 
must  first  be  proved  before  the  principal  is  bound  to  the 
bargain.  But  who  is  to  judge  of  this  proof?  Why  cer- 
tainly the  court:  after  that  the  party  is  let  in  with  his 
evidence.  This  principle  is  farther  illustrated  by  the  right 
of  a  party  to  require  a  special  verdict:  and  also  by  his 
right  to  demur  to  evidence,  which  is  possessed  by  every 
one.  Now  if  a  juror  is  withdrawn,  and  the  case  com- 
menced de  novo,  or  a  special  verdict  is  to  be  given,  who 
is  to  judge  of  the  facts  which  shall  lead  to  such  a  result? 
Certainly  the  court.  This,  sir,  is  sound  law. 

I  come,  now,  may  it  please  your  honours,  to  inquire — 
and  it  is  a  most  important  inquiry  indeed;  not  only  as 
respects  this  case,  but,  as  it  may  affect  the  public  at  large, 
and  our  posterity — what  properly  constitutes  the  crime 
of  levying  war? 

Ch.  Justice.  Before  you  go  into  this  point,  I  will  ask 


the  Trial  of  Aaron  Burr.  267 

if  you  know  of  any  cases  in  addition  to  those  mentioned 
before,  respecting  the  necessity  of  first  proving  the  overt 
act? 

Mr.  JVickham.  I  consider  Deacon's  and  Wedder- 
burne's  cases  amply  illustrative  of  the  principle:  and 
there  are  a  number  of  other  cases  which  I  presume  will 
be  quoted  to  support  the  doctrine.  The  State  Trials,  when 
the  cases  are  recited  at  large,  will  sufficiently  prove  the 
doctrine;  and  also  that  the  court  is  to  decide  upon  the 
nature  of  the  evidence.  I  do  not  say  that  the  court  is 
bound  to  go  into  the  full  evidence;  but  there  must  be 
some  evidence  given,  on  the  fact,  such,  as  if  legally  true, 
might  be  sufficient  to  support  a  demurrer. 

But  what  is  the  overt  act,  of  levying  war? 

Mr.  W.  here  referred  to  Mr.  Hay's  observations  upon 
these  terms. 

Mr.  Hay  explained,  and  recited  his  argument  upon  the 
point;  which  he  said  was  founded  on  the  opinion  of  the 
Supreme  Court.  He  trusted  that  the  gentleman  would 
not  catch  up  a  part  of  his  argument  without  taking  up 
the  whole.  On  the  question  of  where  is  the  point  at  which 
an  overt  act  of  treason  does  exist — he  would  answer  that 
it  was  where  there  was  an  assemblage  of  men  collected 
together  to  accomplish  a  treasonable  act  by  force,  which 
it  is  their  intention  to  complete,  by  force,  before  they 
separate.  This  answer  was  furnished  by  the  Supreme 
Court.  Now,  the  force  which  was  meant  to  be  employed 
by  this  assemblage,  I  take  it  for  granted  was  intended  to 
accomplish  the  object  they  had  in  view  before  they  sepa- 
rated; and  upon  this  the  prosecution  is  grounded.  I  do 
not  mean  to  say  that  they  intended  to  accomplish  their 
object  before  they  quitted  the  place  where  they  were 
collected:  it  is  clear  that  their  first  meeting  was  only  an 
assemblage  for  conspiracy;  but  the  crime  of  treason  was 
attached  to  their  conduct  by  their  continuance  in  the  act, 


268  Mr.  WickharrCs  Speech  on 

which  it  was  not  their  design  to  relinquish  until  they  had 
completed  the  purpose  for  which  they  had  assembled. 

Mr.  Wirt.  I  suppose  the  counsel  on  the  part  of  the 
defendant  have  the  right  to  object  to  the  production  of 
any  piece  of  evidence  which  they  may  think  proper  to 
disapprove  of.  If  they  came  here  to  make  questions,  they 
have  the  right  to  propound  any  propositions  touching  that 
evidence.  But,  sir,  I  suppose  the  court  have  also  the  right 
to  prevent  them  from  confounding  distinct  propositions, 
so  as  to  make  a  mixture  in  the  debate  of  points  which  do 
not  belong  to  it.  On  the  other  dav  the  counsel  for  the 
defendant  rose  to  propound  this  question  to  the  court — 
that  there  being  no  evidence  of  the  presence  of  Aaron 
Burr  on  Blannerhasset's  island,  we  not  being  able  to 
produce  any  further  proof  of  his  guilt,  he  ought  to  be 
discharged.  This  day  he  opens  with  a  totally  distinct  pro- 
position; to  wit:  that  the  overt  act,  which  we  say  is  prov- 
ed, is  no  overt  act  at  all:  and  therefore  that  we  ought  not 
to  go  on  with  our  corroborative  evidence.  I  hope  these 
qut  stions  will  be  separated. 

Ch.  Justice.  When  there  are  distinct  propositions,  the 
court  will  decide  them;  but  when  there  is  a  distinction 
in  the  argument  only,  how  can  the  court  separate  them? 
Now,  if  I  understand  the  course  of  the  argument  ad- 
vanced, it  is  continued  under  four  different  heads,  or 
reasons:  first,  that  Mr.  Burr  not  being  present,  he  cannot 
be  charged  with  the  treason:  2dly,  that  under  this  in- 
dictment he  cannot  be  tried,  because  it  is  stated  to  be 
deficient  for  specified  reasons:  3dly,  that  the  guilt  being 
of  a  derivative  nature,  the  principal  ought  first  to  be  con- 
victed; or  that  a  proof  of  his  conviction  ought  to  be  in 
court  before  the  accessory  can  be  tried.  And  now  he  is, 
4thly,  about  to  require  it  to  be  proven  that  the  act  charg- 
ed was  "an  overt  act  of  levying  war  against  the  United 
States;"  and  therefore  inquires  what  is  levying  war.  He 


the  Trial  of  Aaron  Burr,  26  9 

says  before  any  testimony  can  be  let  in  to  connect  him 
with  that  crime,  it  is  necessary  to  prove  that  there  was 
an  overt  act  of  war,  which  he  denies  to  exist. 

Mr.  Wickham.  I  really  am  very  unfortunate  in  not 
satisfying  the  gentleman  (Mr.  Hay).  I  correctly  quoted 
his  observations,  but  what  is  his  answer?  Why,  that 
his  definition  is  the  definition  of  the  Supreme  Court! 
[Here  Mr.  W.  read  a  part  of  the  opinion  of  the  Supreme 
Court.]  Upon  this  he  relies:  but  he  is  not  held  out  in 
his  doctrine  even  from  this  authority. 

I  will  now  proceed,  sir,  to  examine  his  positions;  he 
relies  upon  the  decision  of  the  Supreme  Court;  and  thinks 
to  make  their  definition  of  treason  to  conform  to  his  ideas. 
An  assemblage  of  men  on  the  island,  withour  any  publi- 
city, without  force,  and,  I  may  say,  without  numbers,  is 
sufficient  to  constitute  an  act  of  levying  war.  [Mr.  W. 
read  a  part  of  the  opinion,  and  of  the  opinion  of  the  chief 
justice  at  the  time  of  first  committing  Mr.  Burr.  Sect.  5.~\ 
hlow  it  is  evident  that  the  gentleman  on  the  other  side 
considers  that  he  has,  by  reading  this  paragraph  of  the 
opinion,  produced  a  complete  definition:  but,  if  he  goes 
a  little  farther  he  will  find,  that  the  words  "  by  force," 
sect.  8.  is  necessary  to  produce  a  treason;  and  this  is  the 
opinion  of  judge  Chase  in  another  case.  I  refer  however 
only  to  your  honour's  opinion  of  the  commitment,  which 
expressly  requires  that  there  must  be  force;  troops  must 
be  embodied,  and  men  must  be  assembled  to  "  levy  war.'5 
But  we  are  told  that  Fries's  counsel  laid  down  this 
principle.  Why,  sir,  it  is  well  known  that  the  declara 
tions  or  opinions  of  counsel  are  not  authority.  But,  thei. 
opinions  do  not  come  to  the  point.  However,  since  their 
opinion  of  counsel  are  brought  forward,  permit  me  to  give 
the  opinion  of  the   counsel  for   the  prosecution,   Mr. 
Rawle,  p.  179  of  the  trial.  He  says  that  actual  force  is 
not  necessary  to  make  the  crime  of  levying  war,  but  the 


270  Mr.  Wickhatrvs  Speech  on 

attempt  must  be  made  by  terror,  or  by  intimidation,  with 
numbers  sufficient  to  accomplish  the  object:  provided 
the  object  be  of  a  general  nature.  We  will  put  this  illus- 
tration: a  body  of  men,  sufficient  in  numbers  and  in 
means,  to  take  the  capitol  and  all  the  property  that  is  in 
it,  is  prepared:  they  march  into  the  city,  and  find  no  op- 
position, because  they  do  that  by  terror  of  a  number  and 
warlike  appearance  which  accomplishes  their  object.  This 
is  denominated  potential  force:  they  obtain  their  object 
without  the  actual  execution  of  force,  though  force  suffi- 
cient to  accomplish  their  object  is  employed.  Mr.  Sit- 
greaves,  who  assisted  Mr.  Rawle,  is  still  more  explicit, 
p.  19,  20.  "  A  tumultously  raising  the  people,  with 
force,  for  the  purpose  of  subverting  or  opposing  the  law- 
ful authority  of  the  government,  in  which  those  insur- 
gents have  no  particular  interest,  distinct  from  the  people 
at  large,"  is  the  definition  he  gives  of  treason.  "  It  must 
be  a  war  waged  against  the  United  States."  This  is  an 
important  distinction. — u  It  must  be  avowedly  levying 
war  against  the  United  States."  Justice  Foster  to  be  sure 
allows  of  potential  force,  but  if  you  examine  all  his  wri- 
tings, you  find  that  it  was  his  opinion  that  actual  violence 
must  be  used  before  the  act  of  treason  could  be  said  to 
be  committed.  Now  surely  it  would  be  an  actual  vio- 
lence, if  they  were  to  go  to  the  palace  of  the  king,  and 
order  him  away,  if  the  force  was  sufficient  to  compel  his 
obedience:  even  though  there  should  be  no  act  of  war 
committed.  We  shall  not  find  a  case  in  the  books  that 
goes  farther  than  this.  Vaughari's  case  comes  the  nearest 
to  the  prosecutor's  advantage.  He  had  been  carrying  on 
war  against  his  country  under  a  foreign  commission  from 
a  foreign  prince  (France)  in  a  ship  called  the  Royal 
Clencarty,  but  meeting  with  a  ship  of  superior  strength, 
he  struck  without  battle.  There  were  two  counts  in  the 
indictment:  one  for  levying  war  against  the  king;  the 


the  Trial  of  Aaron  Burr.  271 

other  for  adhering  to  the  king's  enemies.  Lord  Ch.  Just. 
Holt,  on  that  case  says,  that  marching  with  arms  is  le- 
vying war,  if  the  act  be  of  a  public  nature.  The  court 
even  doubted  how  far  the  sailing  with  a  French  commis- 
sion, or  privateering,  would  support  the  prosecution, 
since  there  was  no  open  act  of  war  done,  but  they  de- 
pended upon  that  count  which  charged  him  with  adhering 
to  the  king's  enemies.  I  shall  therefore  rely  upon  the 
form  of  the  indictment,  and  think  it  necessary  to  be 
proved  that  there  was  an  overt  or  open  act  of  hostility 
commenced  and  carried  on.  I  do  not  know  but  I  might 
have  gone  too  far  when  I  considered  the  indictment  vi- 
tiated by  the  omission  of  the  word  "  public."  I  find  that 
in  the  second  trial  of  Fries,  the  word  public  is  omitted 
in  the  indictment,  though  it  is  in  the  first  indictment, 
and  is  usually  inserted.  Whether,  therefore,  it  is  abso- 
lutely necessary  or  not,  it  is  useless  to  take  up  the  time 
of  the  court  to  argue.  But  this  is  not  all  that,  between 
his  indictment  and  his  argument  he  thinks  a  minute 
omission.  It  seems  as  though  he  thought  it  unnecessary 
to  prove  military  array;  actual  force,  terror,  or  intimida- 
tion as  well  as  that  the  act  should  be  public:  and  he 
would  make  no  ingredient  necessary  to  prove  levying  of 
war — but  that  it  might  be  committed,  without  any  act, 
without  arms,  without  force,  and  in  private.  If  this  is  to  be 
the  law  of  treason,  I  know  of  no  man  who  would  be  safe, 
because  the  crime  would  consist  in  a  criminal  intent; 
but,  sir,  we  have  reason  to  felicitate  ourselves  that  neither 
the  laws  nor  constitution  of  this  country  know  of  no  such 
a  definition  of  crime. 

Again.  The  gentleman's  doctrine  would  leave  no  room 
to  draw  back:  he  takes  away  the  locus  pee  nit  entite  entirely. 
Now  suppose  a  war  against  the  state  of  Virginia  is  in- 
tended in  the  bosom  of  any  man:  but  before  he  comes 
to  the  act,  he  repents  and  goes  no  farther,  but  withdraws 


272  Mr.  Wickhattfs  Speech  on 

altogether  from  his  scheme:  shall  this  man  be  punished 
as  a  traitor,  when  he  has  done  no  traitorous  act,  but  re- 
pented of  it  before  its  intended  commencement?  And 
so,  if  a  body  meet  together  and  separate  without  doing 
any  thing,  shall  their  assembling  be  denominated  treason? 
Now  what  can  he  call  the  intention  of  a  body  of  men, 
when,  perhaps,  there  are  not  two  of  them  who  have  the 
same  ideas  as  to  the  object?  Such  a  vague  and  uncertain 
set  of  ideas  never  can  merit  the  serious  regard  of  any 
court,  when  they  are  intended  to  define  so  high  a  crime 
as  treason.  I  trust  in  God  that  such  doctrine  will  be  never 
again  urged  in  this  country,  because  it  would  introduce 
into  this  country  the  alarming  doctrine  of  constructive 
treason,  and,  indeed,  of  the  worst  kind,  by  diving  into 
the  very  thoughts  and  intentions  of  a  man;  and  it  would 
introduce  worse  than  the  most  rude  and  cruel  times  of 
antiquity.  Supposing  that  such  horrid  principles  must 
be  disclaimed,  and  that  those  rude  times  never  can  re- 
turn, nor  such  men  be  again  found  to  exercise  injustice, 
1  will  examine  what  is  the  nature  of  this  case,  upon  the 
ground  of  the  evidence  which  has  been  produced. 

The  first  witness  was  Peter  Taylor,  who,  being  pre- 
sent, ought  to  have  known  what  passed  at  the  island.  The 
court  have  heard  his  testimony;  and  doubtless  have  paid 
accurate  attention  to  it.  There  is  not  one  word  in  it 
which  proves  the  least  circumstance  of  war.  He  saw  four 
or  five  rifles  among  thirty  men;  and  says  there  were  a 
few  bullets  run.  Now  certainly  their  liberty  to  carry 
rifles  and  to  run  bullets  will  not  be  disputed.  But  they 
had  some  powder.  Why  their  rifles  and  bullets  would  be 
useless  without  that: — they  had  but  a  small  quantity  even 
to  kill  their  game  with;  and  there  was  no  military  parade 
observed.  But  he  saw  another  thing;  he  saw  Mr.  Wood- 
bridge  take  up  Mrs.  Blannerhasset  from  the  landing  to 
the  house!  Now  Mr..  W.  says  he  did  not;  that  he  was 


the  Trial  of  Aaron  Burr.  273 

in  bed  at  that  time.  Mr.  Love,  Mr.  Blannerhasset's  groom, 
and  Mr.  Woodbridge  both  declare  as  to  the  state  of 
things  generally  there:  that  all  was  peace  and  quietness, 
only  to  be  sure  that  they  did  not  mean  to  be  insulted  by 
any  mob  who  might  come  there,  perhaps  to  pull  down 
Mr.  Blannerhasset's  house,  or  do  other  damage. 

Mr.  Hay.  Does  it  appear  fair,  sir,  for  a  counsel  to  ar- 
gue upon  these  halves  or  tenths  of  testimony,  in  order  to 
mitigate  an  offence,  when  we  declare  to  the  court  and  to 
them  that  we  have  many  more  witnesses,  if  we  were  per- 
mitted to  produce  them,  that  would  give  a  character  to 
this  transaction.  We  can  prove  that  the  bullets  were  not 
run  for  the  purpose  of  killing  squirrels  and  hares,  but  for 
killing  the  people  of  the  United  States,  if  they  would  not 
let  them  take  New  Orleans  without.  Now,  sir,  I  ask  the 
court  whether  there  was  ever  such  a  thing  permitted  in 
a  court  of  justice  before. 

Chief  Justice.  I  understood,  and  it  was  so  expressly 
stated,  that  all  the  testimony  relative  to  the  transaction 
at  Blannerhasset's  island  was  gone  through.  It  is  urged 
that  the  prosecution  have  other  testimony  to  produce, 
connected  with  it,  and  collected  from  other  circumstances, 
to  show  the  intention.  Now  the  argument  is  upon  this 
point,  for  it  is  contended  that  if  the  transactions  on  that 
island  are  all  given  in  evidence,  there  is  no  right  to  go 
farther  into  the  examinations  until  it  be  proved  that  an 
act  of  war  was  committed  there.  How  far  the  evidence 
may  prove  that  point  remains  to  be  decided,  upon  the 
evidence. 

Mr.  Hay.  It  is  my  expectation,  sir,  to  be  able  to 
prove,  not  only  a  complete  union  of  all  the  proceedings, 
but  the  actual  character  of  these  proceedings.  I  wish  to 
prove  the  junction  of  the  forces,  after  they  "descended  the 
Ohio  to  Cumberland  island.  And  then  to  produce  a  view 
of  their  object  in  going  down  the  Ohio  and  Mississippi, 

Vol.  II.  2M 


274  Mr.  Wickkam's  Speech  on 

towards  the  execution  of  their  design.  This  I  considered 
to  be  the  province  of  the  jury  to  determine;  and,  there- 
fore, I  imagine  a  motion  to  stop  the  evidence,  and  to  dis- 
charge the  jury,  to  be  out  of  order.  I  confess  that  I  never 
have  heard  a  motion  made  upon  the  assumption  of  a 
point  until  now.  I  hope  the  gentlemen  will  not  contend 
that  this  point  was  conceded.  I  told  them  and  the  court, 
that  I  did  not  admit  the  propriety  or  applicability  of  their 
motion;  and  therefore  the  fact  ought  not  to  be  assumed, 
that  there  was  no  more  evidence.  We  say,  sir,  that  we 
have  testimony;  and  we  presume  to  say,  that  it  ought  to 
be  gone  through.  I  have  never  heard  a  motion  made  like 
the  present,  upon  the  mere  presumption  that  the  prose- 
cutor cannot  support  his  indictment. 

Chief  Justice.  I  did  conceive,  and  do  now  conceive, 
that  there  is  no  sort  of  question  as  to  the  regularity  of  the 
motion  now  made;  and  that  the  court  is  compelled  to 
grant  it.  I  can  assure  the  gentlemen  that  there  is  the 
most  earnest  desire  in  the  court  to  hear  all  the  evidence 
in  this  case;  but  the  court  is  bound  by  the  law  to  hear 
the  argument  of  all  the  parties  upon  any  regular  motion, 
as  much  as  to  render  a  judgment.  It  certainly  is  a  right 
at  all  times  enjoyed  to  move  for  an  argument  upon  the 
relevancy  of  any  particular  species  of  testimony;  and  the 
court  must  hear  the  argument.  The  counsel  on  the  other 
side  say  that  no  testimony  is  relevant  to  the  case,  but 
such  as  is  strictly  attached  to  the  transactions  on  Blan- 
nerhasset's  island.  Now  you  declare  that  you  mean  to 
show  the  guilt  of  the  prisoner  by  extrinsic  circumstances, 
and  not  the  transaction  itself.  I  have  understood  you  to 
say  that  you  have  no  more  evidence  of  the  transactions 
there.  Now,  sir,  I  do  not  say  that  it  is  improper  to  go 
into  the  other  testimony,  but  the  counsel  on  the  other 
side  contend  that  it  is:  they  say  you  are  not  to  produce 
that  testimony  unless  you  first  prove  the  overt  act  on  the 


the  Trial  of  Aaron  Burr.  275 

island.  Therefore,  now  you  have  said  that  you  have  no 
other  testimony,  they  are  going  on  to  argue  upon  the 
weight  of  what  has  been  given,  and  upon  the  inadmissi- 
bility of  any  more.  Upon  this  the  court  is  bound  to  hear 
them. 

Mr.  Hay.  It  is  very  extraordinary  that  they  should 
argue  against  the  introduction  of  other  testimony,  drawn 
from  that  which  has  been  already  produced,  and  which, 
of  itself,  must  be,  in  its  nature,  partial. 

Mr.  Burr.  I  remind  the  court  of  what  passed  in  their 
presence.  It  was  my  earnest  desire  that  every  thing 
which  related  to  what  was  called  the  war,  should  be 
given  in  evidence;  and  it  was  only  for  that  purpose  that 
I  did  not  state  the  other  point  to  the  court  at  an  earlier 
period,  or,  indeed,  at  the  opening  of  the  prosecution.  I 
waited  for  the  evidence,  in  order  to  prove  that  this  was 
not  a  war  at  all.  Day  after  day  have  we  urged  the  prose- 
cution to  come  forward  with  the  "  overt  act,"  and  now 
at  length  we  find  that  they  have  no  proof  of  such  a  thing, 
nor  the  resemblance  of  such  a  thing.  They  cannot  won- 
der, therefore,  that  we  require  an  argument  upon  it,  un- 
less they  consent  to  give  up  the  point.  And  all  the  other 
evidence  which  they  can  bring  will  not  make  that  treason 
which  is  not  so  in  itself. 

Air.  Wickham.  We  say,  sir,  that  having  proved  every 
thing  that  they  can  prove,  as  to  what  relates  to  the  overt 
act,  that  it  is  not,  in  itself,  an  act  of  war;  and  therefore, 
all  declarations,  or  all  evidence  that  relates — even  I  will 
say  to  the  quo  ammo,  is  inadmissible:  for  if  there  be  no 
overt  act  proved,  the  proof  of  intention  is  not  admissible 
by  law.  Now,  sir,  how  can  I  show  that  there  is  no  sort 
of  evidence  of  the  overt  act,  unless  I  am  permitted  to 
state  what  that  evidence  is?  Mr.  Woodbridge  states  that 
every  thing  was  peaceable  and  quiet  on  the  island  when 
he  was  there,  (which  was  the  night  of  their  departure), 


276  Mr.  Wickhairfs  Speech  on 

and  every  one  else  says  the  same.  He  is  asked  what  pass- 
ed between  him  and  Mr.  Tyler?  He  says  that  he  would 
not  oppose  the  constituted  authorities  of  the  country,  if 
he  should  be  attacked  by  authority,  but  should  patiently 
submit — but  if  he  should  be  attacked  by  a  mob,  who 
had  no  powers,  he  would  resist.  Mr.  Dana  perfectly 
agrees  with  Mr.  Woodbridge.  He  passed  over  there,  and 
not  a  word  was  said  to  him,  or  a  question  asked,  though 
the  people  did  not  know  who  he  was.  And  yet  this  was 
the  period  of  the  existence  of  this  bloody  war!  Poole  was 
employed  by  the  government  of  Ohio  to  watch  for  Mr. 
Bianncrhasset,  and  what  does  he  say?  Why  he  was  half 
a  mile  off,  and  he  saw  some  men  with  guns,  or  they  might 
be  sticks,  for  what  he  could  tell,  and  he  observed  a  cer- 
tain question  to  be  asked  when  a  boat  was  hailed.  Now 
what  was  the  true  state  of  this  business?  Mr.  Blanner- 
hasset's  men,  and  Mr.  Tyler's  men,  were  both  on  the 
island.  Mr.  Tyler's  people  had  been  out  a  shooting,  (as 
is  common  in  the  country,  and  as  the  evidence  will  prove); 
now,  it  was  natural  to  suppose,  that  as  they  had  not  any 
connexion,  Mr.  Blannerhasset's  men  would  not  go  for 
Tyler's,  nor  Tyler's  for  those  of  Blannerhasset,  and  there- 
fore it  was  proper  to  hail  the  boat  they  belonged  to.  Now, 
sir,  I  will  even  suppose  that  the  name  of  Tyler's  boat 
might  be  mistaken  by  the  witness  for  I's  boat;  and  that 
will  explain  the  circumstance:  but  be  it  how  it  may,  it 
is  no  evidence  of  war,  and  it  is  impossible  to  construe  it 
to  that  meaning. 

There  is  another  witness,  if  I  can  possibly  suppose  that 
this  man's  evidence  can  deserve  the  least  attention;  and 
that  is  Albright.  Now  two  witnesses  are  requisite  to 
prove  an  overt  act  of  treason:  but  I  will  for  a  moment 
suppose  that  this  man  believed  what  he  gave  in  evidence 
to  be  true.  Why,  sir,  that  would  not  be  a  competent 
evidence  of  a  fact:  it  is  not  legal  testimony,  however  true. 


the  Trial  of  Aaron  Burr.  277 

Gen.  Tupper  is  stated  to  have  come  over  to  Virginia 
(Blannerhasset's  island)  to  arrest  a  man,  from  the  autho- 
rity of  Ohio.  Gen.  Tupper  is  not  examined  as  to  this 
fact,  but  if  he  had  he  could  produce  no  legal  authority 
for  arresting  a  man  in  Virginia,  and  therefore,  if  it  had 
been  true  that  the  pieces  were  presented,  which  we  deny 
to  have  been  the  fact,  it  would  not  have  been  an  overt 
act  of  treason,  because  he  had  no  authority  to  lay  his 
hand  on  any  man  in  Virginia  in  the  name  of  the  state  of 
Ohio.  But  no  warrant  has  been  shown,  or  proved  to  have 
existed.  And,  sir,  what  is  a  good  evidence  to  the  contra- 
ry of  that  such  did  exist,  is  that  Gen.  Tupper  was  with 
them  and  wished  them  a  good  voyage.  But  to  prove  an 
act  of  treason,  it  is  necessary  to  prove  a  real  arrest  from 
legal  authority;  for  without  that  a  resistance  itself  would 
have  been  no  act  of  treason.  Gen.  Tupper  is  here;  and 
the  attorney  might  have  examined  him  if  he  had  thought 
it  to  his  advantage:  but  I  presume  it  was  not. 

But,  sir,  against  whom  is  this  treason  committed? 

If  it  is  against  any,  it  is  against  the  state  of  Virginia, 
because  it  must  have  been  under  the  law  of  Virginia 
that  the  process  was  granted,  or  else  it  could  have 
amounted  to  nothing. 

But  this  man  says  that  he  saw  a  number  of  guns,  at 
different  times,  equal  to  the  number  of  men  that  were 
there.  Now,  how  could  he  possibly  know  the  number  of 
guns  that  were  there,  when  he  confesses  that  he  did  not 
see  them  all  together,  but  at  different  times.  Now,  it  is 
most  obvious,  that  if  this  can  be  called  treason,  any  thing 
may  be  denominated  treason,  that  any  government  may 
choose  to  make  so.  But  the  gentleman  seems  to  think 
that  ihe  latitude  of  treasons  ought  to  be  extended;  be- 
cause, in  a  free  government  there  is  no  danger  but  every 
man  will  have  fair  play.  This  argument  might,  at  first 
sight,  appear  very  sound,  but  if  you  couple  with  it  a  doc 


278  Mr.  Wickhairi's  Speech  on 

trine  which  was  advanced  the  other  day,  that  a  majority 
ought  to  govern,  we  shall  not  find  it  so  safe;  for  we  may 
find  from  experimental  writers  on  the  subject,  that  fac- 
tions are  more  felt  in  a  free  government,  than  under  one 
which  is  despotic.  We  have  our  parties  and  our  factions, 
to  be  sure;  but  in  the  country  governed  by  Bonaparte, 
or  in  his  camps,  there  is  no  faction  or  party:  but  who 
would  not  prefer  the  government  of  laws?  Upon  the 
ground,  therefore,  of  keeping  us  from  the  power  of  party, 
and  fixing  the  principle  of  crimes,  our  constitution  and 
laws  were  established. 

Sir,  I  have  gone  through  what  I  had  proposed.  These 
are  questions,  which  not  only  affect  my  client,  but  the 
citizens  at  large  of  this  country:  and  I  only  observe,  that 
when  the  counsel  have  to  oppose  this  doctrine,  it  must 
be  upon  abstract  principles;  and  there  is  no  ground  be- 
sides, of  whatever  nature.  Indeed,  they  must  contend,  or 
admit,  that  the  constitution  of  the  United  States,  which 
was  drawn  with  so  much  care  and  attention,  is  a  dead 
letter — that  the  citizens  of  the  United  States  may  be  hur- 
ried, no  matter  how,  from  one  end  of  the  United  States  to 
the  other;  and  be  charged  with  the  commission  of  crimes 
where  they  never  have  been,  and  in  company  with  per- 
sons utterly  unknown  to  them.  All  this,  and  more  might 
be  the  consequence.  They  might  be  tried  under  an  in- 
dictment that  does  not  even  specify  what  they  were 
brought  there  for — They  might  be  liable  for  crimes  that 
are  not  even  named;  and  connected  with  persons  that 
they  never  heard  of.  Indeed,  they  must  go  beyond  that: 
they  must  even  say  that  judge  Jeffries  was  right,  and  that 
ail  the  moderate  sages  of  this  country  were  wrong,  before 
they  can  convict  my  client  of  treason.  Besides  this,  they 
must  contend  that  the  law  of  treason  is  totally  misunder- 
stood; and  that  it  is  whatever  they  please  to  make  it — 
;nd  that  levying  war  against  a  government  is  to  be  done, 


the  Trial  of  Aaron  Burr.  279 

without  arms,  without  military  force,  and  without  men! 
All  this,  and  more,  must  be  contended  for,  upon  this  prin- 
ciple, wherever  the  crime  shall  be  charged,  and  against 
whomsoever.  I  do  not,  here,  pretend  to  charge  the  go- 
vernment: God  forbid  that  I  should  make  the  slightest 
reference  to  their  being  the  authors  of  this  prosecution, 
or  that  I  should  ascribe  it  to  any  of  the  gentlemen  on  the 
other  side.  I  believe  that  both  the  government  and  they 
would  disclaim  any  wrong  action.  But  there  may  be  some 
agents  who  would  wish  it;  and  who  ought  not  to  be 
trusted  so  far  as  they  are  in  the  concerns  of  the  govern- 
ment.  However,  I  wish  to  make  no  reflections,  but  to 
consider  the  question  more  as  regards  futurity,  and  not 
my  client,  who  cannot  be  involved  under  this  indictment. 
The  principles  themselves,  and  not  my  client,  particu- 
larly, demand  the  attention  of  the  court;  and  solely  upon 
this  ground  I  have  taken  up  so  much  of  the  time  of  the 
court. 


SPEECH  OF  MR.  WIRT, 

OX  THE  TRIAL  OF  AARON  BURR,  LATE  VICE-PRESIDENT  OF  THE 
UNITED  STATES,  FOR  HIGH  TREASON. 

[iK  REPXY  TO   MR.  WICKHAM.] 

May  IT  PLEASE  your  honours: 

IT  is  my  duty  to  proceed  on  the  part  of  the  United  States 
in  opposing  this  motion.  But  I  should  not  deem  it  my  duty 
to  proceed,  if  I  thought  the  motion  itself  well  founded.  I 
stand  here  with  the  same  independence  which  belongs  to 
the  attorney  of  the  United  States,  and  as  he  would  certainlv 
relinquish  the  prosecution  the  moment  he  became  convinc- 
ed of  its  injustice,  so  also,  most  certainly  would  I.  The  hu 


280  Mr.  WirVs  Speech  on 

inanity  and  justice  of  this  nation  would  revolt  at  the  idea  of 
a  prosecution  pushed  against  a  life  which  stood  protected 
by  the  laws;  but  whether  they  would  or  not,  before  I  would 
plant  a  thorn  in  my  own  heart  to  rankle  there  for  life,  by 
opening  my  lips  unconscientiously  in  such  a  case,  I  would 
seal  them  up  for  ever.  Believing,  however,  as  I  do,  that 
this  motion  is  a  mere  manoeuvre  to  obstruct  the  enquiry, 
to  wrest  the  trial  of  the  facts  from  the  proper  tribunal,  the 
jury,  and  embarrass  the  court  with  a  responsibility  which 
it  ought  not  to  feel,  I  hold  it  my  duty  to  proceed — for  the 
sake  of  the  court,  for  the  sake  of  vindicating  the  trial  by 
jury,  now  sought  to  be  violated — for  the  sake  of  full  and 
ample  justice  in  this  particular  case — for  the  sake  of  the 
future  peace,  union  and  independence  of  these  states,  I 
hold  it  my  bounden  duty  to  proceed. 

And  while  I  do  so,  let  me  request  the  prisoner  and  his 
counsel  to  consider  the  difficulty  of  clothing  my  argu- 
ment in  terms  which  may  be  congenial  with  their  feelings. 
The  gentlemen  appear  to  me  to  feel  a  very  extraordinary 
and  unreasonable  degree  of  sensibility  on  this  occasion. 
They  seem  to  forget  the  nature  of  the  charge  and  that  we 
are  the  prosecutors.  We  do  not  stand  here  to  pronounce 
a  panegyric  on  the  prisoner,  but  to  urge  home  upon  him 
the  charge  of  treason  against  the  United  States.  Treason 
is  the  charge;  when  we  speak  of  treason  we  must  call  it 
treason;  when  we  speak  of  a  traitor,  we  must  call  him  a 
traitor;  when  we  speak  of  a  plot  to  dismember  the  union, 
to  undermine  the  liberties  of  a  great  portion  of  the  people 
of  this  country,  and  to  subject  them  to  an  usurper  and  a 
despot,  we  are  obliged  to  use  the  terms  which  convey  these 
ideas.  Why,  then,  are  gentlemen  so  sensitive?  Why  on 
these  occasions  so  necessary  and  so  unavoidable,  do  they 
shrink  back  with  as  much  agony  of  nerve  as  if,  instead  of 
a  hall  of  justice,  we  were  in  a  drawing  room  with  Col. 
Burr,  and  were  barbarously  violating  towards  him,  every 
principle  of  decorum  and  humanity. 


the  Trial  of  Aaron  Burr,  281 

We   have,    indeed,  been  invited  by  Mr.  Wickham 
to   conduct   this  argument   on   abstracted   ground;    and 
have  been  told  that  it  is  expected  to  be  so  conducted: 
but,  sir,  if  this  were  practicable,  would  there  be  no  dan- 
ger in  it;  would  there  be  no  danger  while  we  were  moot- 
ing points,  pursuing  ingenious  hypotheses,  chasing  ele- 
mentary  principles  over  the   wide   extended  plains  and 
alpine  heights  of  abstracted  law,  that  we  should  lose  sight 
of  the  great  question   before  the  court.    This  may  suit 
the  purposes  of  the  counsel  for  the  prisoner;  but  it  does 
not,  therefore,  necessarily  suit  the  purposes  of  truth  and 
justice.  It  will  be  proper  when  we  have  derived  a  prin- 
ciple from  law  or  argument,  that  we  should  bring  it  to 
the  case  before  the  court  in  order  to  test  its  application 
and  its  practical  truth:   in  doing  which  we  are  driven  into 
the  nature  of  the  case,  and  must  speak  of  it  as  we  find  it. 
But,  besides,  the  gentlemen  have  themselves  rendered  this 
totally  abstracted  argument  impossible;  for  one  of  their 
positions  is,  that  there  is  no  overt  act  proven  at  all.  Now, 
that  an  overt  act  consists  of  fact  and  intention  has  been 
so  often  repeated  here,  that  it  has  a  fair  title  to  Justice 
Vaughan's  epithet  of  decant latum;  in  speaking  then  of  this 
overt  act,  we  are  compelled  to  enquire  not  merely  into  the 
fact  of  the  assemblage,  but  the  intention  of  it;  in  doing 
which  we  must  examine  and  develop  the  whole  project 
of  the  prisoner.  It  is  obvious,  therefore,  that  an  abstract 
examination  of  this  point  cannot  be  made:  and  since  die 
gentlemen  drive  us  into  the   examination,    they  cannot 
complain  if,  without  any  softening  of  lights  or  deepening 
of  shades,  we  exhibit  the  picture  in  its  true  and  natural 
state. 

This  motion,  sir,  is  a  bold  and  original  stroke  in  the 

noble  science  of  defence.  It  shows  the  hand  and  genius  of 

a  master.  For  while  it  gives  to  the  prisoner  the  full  benefit 

of  his  legal  defence,  of  the  whole  and  sole  defence  which 

Vol.  II.  2N 


282  Mr.  JVirfs  Speech  on 

he  would  be  able  to  make  to  the  jury,  if  the  evidence 
were  gone  through,  it  cuts  off  from  the  prosecution  all 
that  evidence  which  goes  to  connect  the  prisoner  with  the 
assemblage  on  the  island,  to  explain  the  destination  and 
objects  of  that  assemblage,  and  to  stamp,  beyond  contro- 
versy, the  character  of  treason  upon  it.  Connect  this  mo- 
tion with  that  which  was  made  by  the  prisoner  the  other 
day,  to  compel  us  to  begin  with  proof  of  the  overt  act,  in 
which,  from  their  zeal,  gentlemen  were  equally  sanguine, 
and  observe  what  would  have  been  the  effect  of  success 
in  both  motions;  we  should  have  been  reduced  to  the  sin- 
gle fact,  the  insulated  fact  of  the  assemblage  on  the  island, 
without  any  of  that  evidence  which  explains  the  intention 
and  object  of  that  assemblage;  thus  gentlemen  would  have 
cut  off  all  the  evidence  which  carries  up  this  plot  almost 
to  its  conception;  which,  at  all  events,  describes  the  first 
motion  which  quickened  it  into  life,  and  follows  its  pro- 
gress until  it  attained  such  strength  and  maturity  as  to 
throw  the  whole  western  country  into  consternation:  Of 
the  -world  of  evidence  which  we  have,  we  should  have 
been  reduced  to  the  speck,  the  atom  which  relates  to 
Blannerhasset's  island;  General  Eaton's  published  narra- 
tion, hitherto  so  much  and  so  unjustly  reviled,  would 
have  been  without  the  strong  corroboration  of  Commo- 
dore Truxtun,  and  the  still  stronger  and  most  extraordi- 
nary evidence  of  the  Morgans.  Standing  alone,  gentlemen 
would  have  still  proceeded  to  speak  of  that  affidavit  as  they 
have  heretofore  done;  not  declaring  that  what  General  Ea- 
ton had  sworn,  was  not  the  truth,  but  that  it  was  a  most 
marvellous  story!  a  most  wonderful  tale!  and  thus  would 
they  have  continued  to  seek  in  the  bold  and  wild  extrava- 
gance of  the  project  itself,  an  argument  against  its  exist- 
ence, and  a  refuge  from  public  indignation.  But  that 
refuge  is  taken  away.  General  Eaton's  narration  stands 
confirmed  beyond  the  possibility  of  rational  doubt.  But  I 
ask  what  inference  is  to  be  drawn  from  these  repeated  at~ 


the  Trial  of  Aaron  Burr.  283 

tempts  to  stifle  the  prosecution  and  smother  the  evidence. 
If  the  views  of  the  prisoner  were,  as  they  have  been  so 
often  represented  by  one  of  his  counsel,  highly  honourable 
to  himself  and  glorious  to  his  country \  why  not  permit 
the  evidence  to  disclose  these  views?  Accused  as  he  is  of 
high  treason,  he  would  certainly  stand  acquitted,  not  only 
in  reason  and  justice,  but  by  the  maxims  of  the  most 
squeamish  modesty,  in  showing  us,  by  evidence,  all  this 
honour  and  this  glory  which  his  scheme  contained. — No, 
sir,  it  is  no  squeamish  modesty;  it  is  no  fastidious  delicacy 
that  prompts  these  repeated  efforts  to  keep  back  the  evi- 
dence; it  is  apprehension;  it  is  fear;  or  rather,  it  is  the 
certainty  that  the  evidence,  whenever  it  shall  come  for-* 
ward,  will  fix  the  charge;  and  if  such  shall  appear  to  the 
court  to  be  the  motive  of  this  motion,  your  honours,  I 
well  know,  will  not  be  disposed  to  sacrifice  public  justice 
committed  to  your  charge,  by  aiding  this  stratagem  to 
elude  the  sentence  of  the  law;  you  will  yield  to  the  motion 
no  farther  than  the  rigour  of  legal  rules  shall  imperiously 
constrain  you. 

I  come  now  to  answer  the  argument  of  the  gentleman 
(Mr.  Wickham)  who  spoke  first  in  support  of  this  motion. 
I  will  treat  the  gentleman  with  candour.  I  will  not  follow 
the  example  which  he  has  set  me  on  a  very  recent  occa- 
sion. I  will  not  complain  of  flowers  and  graces,  when  none 
exist.  I  will  not,  like  him,  in  reply  to  an  argument,  as 
naked  as  a  sleeping  Venus,  though  certainly  not  half  so 
beautiful,  complain  of  the  painful  necessity  I  am  under,  in 
the  weakness  and  decrepitude  of  logical  vigor,  of  lifting 
first  this  flounce  and  then  that  furbelow,  before  I  can  reach 
the  wished  for  point  of  attack.  I  keep  no  flounces  or  fur- 
belows ready  manufactured  and  hung  up  for  use,  in  the 
millinary  of  my  fancy — and  if  I  did,  I  think  I  should  not 
be  so  indiscreetly  impatient  to  get  rid  of  my  wares  as  to 
put  them  off  on  improper  occasions.  I  cannot  promise  to 


284  Mr.  Wirt's  Speech  on 

interest  you  by  any  classical  and  attic  allusions  to  the  pure 
pages  of  Tristram  Shandy;  I  cannot  give  you  a  squib  or 
a  rocket  in  ever)-  period;  for  my  own  part  I  have  always 
thought  these  flashes  of  wit,  (if  they  deserve  even  that 
name,)  I  have  always  thought  these  meteors  of  the  brain, 
which  sprung  up  with  such  exuberant  abundance  in  the 
speeches  of  that  gentleman,  which  play  on  each  side  of  the 
path  of  reason,  or  sporting  across  it  with  fantastic  motion, 
decoy  the  mind  from  the  real  point  of  enquiry,  no  better 
evidence  of  the  soundness  of  the  argument  with  which 
they  are  connected,  nor,  give  me  leave  to  add,  the  vigor 
of  the  brain  from  which  they  spring,  than  those  vapours 
which  start  from  our  marshes  and  blaze  with  a  momentary 
combustion,  which,  floating  on  the  undulations  of  the  at- 
mosphere, beguile  the  traveller  into  bogs  and  brambles, 
are  evidences  of  the  firmness  and  solidity  of  the  earth  from 
which  they  proceed. 

I  will  endeavour  to  meet  the  gentleman's  positions  fully 
and  to  answer  them  fairly;  I  will  not,  as  I  am  advancing 
towards  them,  measure  with  my  mind's  eye,  the  height, 
breadth  and  power  of  the  proposition;  if  I  find  it  beyond 
my  strength,  halve  it;  if  still  beyond  my  strength  quarter 
it;  if  still  necessary,  subdivide  it  into  eighths;  and  when  by 
this  process  I  have  reduced  it  to  the  proper  standard,  take 
one  of  these  sections  and  toss  it  with  an  air  of  elephantine 
strength  and  superiority.  If  I  find  myself  capable  of  con- 
ducting, by  a  fair  course  of  reasoning,  any  one  of  his  pro- 
positions to  an  absurd  conclusion,  I  will  not  begin  by 
stating  that  absurd  conclusion  as  the  proposition  itself 
which  I  am  going  to  encounter.  In  commenting  on  the 
gentleman's  authorities,  I  will  not,  with  sarcastic  polite- 
ness, thank  him  for  introducing  them;  declare  that  they 
conclude  directly  against  him;  read  just  so  much  of  the 
authority  as  serves  the  purpose  of  that  declaration,  omit- 
ting that  which  contains  the  true  point  of  the  case  which 


the  Trial  of  Aaron  Burr.  285 

makes  against  me;  nor  if  forced  by  a  direct  call  to  read 
that  part  also,  will  I  content  myself  by  running  over  it  as 
rapidly  and  inarticulately  as  I  can,  throw  down  the  book 
with  a  theatrical  air,  and  exclaim,  "just  as  I  said,"  when 
I  know  it  is  just  as  I  had  not  said.  I  know  that  by  adopt- 
ing these  arts,  I  might  raise  a  laugh  at  the  gentleman's 
expence;  but  I  should  be  very  little  pleased  with  myself, 
if  I  could  enjoy  a  laugh  so  raised.  I  know,  too,  that  by 
adopting  such  arts,  there  will  always  be  those  standing 
around  us,  who  have  not  comprehended  the  whole  merits 
of  the  legal  discussion,  and  with  whom  I  might  shake  the 
character  of  the  gentleman's  science  and  judgment  as  a 
lawyer.  I  hope  I  shall  never  be  capable  of  such  a  wish; 
asd  I  had  hoped  that  the  gentleman  himself  felt  so  strongly 
that  high,  aspiring  and  ennobling  magnanimity  which  I 
had  been  told  that  conscious  talents  rarely  failed  to  inspire, 
that  he  would  have  looked  with  disdain  on  the  poor  and 
fleeting  triumph  which  could  be  gained  by  arts  like  these. 

I  proceed  now,  sirs,  to  answer  his  points  so  far  as  they 
could  be  collected  from  the  general  course  of  his  speech. 
I  say  so  far  as  they  could  be  collected;  for  the  gentleman, 
although  requested  before  he  began,  refused  to  furnish  us 
with  his  points  in  writing.  It  suited  better  his  partizan 
style  of  warfare  to  be  perfectly  at  large;  to  change  his 
ground  as  often  as  he  pleased;  to-day  on  the  plains  of 
Monmouth — to-morrow  at  the  Eutaw  Springs.  He  will 
not  censure  me,  therefore,  if  I  have  not  been  correct  in 
gathering  his  points  from  a  desultory  discourse  of  four 
or  five  hours  length.  I  trust,  however,  that  I  have  been 
correct;  it  was  my  intention  to  be  so;  for  I  can  see  neither 
pleasure  nor  interest  in  misrepresenting  any  gentleman, 
and  I  now  beg  the  court  or  the  gentleman,  if  he  will 
vouchsafe  it,  to  set  me  right  if  I  have  misconceived  him. 

I  understand  him  then,  sir,  to  resist  the  introduction 
of  farther  evidence  under  this  indictment  on  these  four 
grounds. 


286  Mr.  Wirt's  Speech  on 

1.  Because  Aaron  Burr,  not  being  present  on  the  island 
at  the  time  of  the  assemblage,  cannot  be  a  principal  in  the 
treason  within  the  constitutional  definition;  nor  within  the 
laws  of  England. 

2.  Because  the  fact  must  be  proved  as  laid;  and  as  the 
indictment  charges  the  prisoner  with  levying  war  with  an 
assemblage  on  the  island,  no  evidence,  to  charge  him  with 
that  act  by  relation  is  relevant  to  this  indictment. 

3.  Because  if  he  be  a  principal  in  the  treason  at  all,  he 
is  a  principal  in  the  second  degree;  and  his  guilt  being  of 
that  kind  which  is  termed  derivative,  no  parol  evidence 
can  be  let  in  to  charge  him  until  we  shall  show  a  record 
of  the  conviction  of  the  principals  in  the  first  degree. 

4.  Because  no  evidence  is  relevant,  to  connect  the  pri- 
soner with  others  and  thus  to  make  him  a  traitor,  by  re- 
lation, until  we  shall  previously  show  an  act  of  treason  in 
those  others;  and  the  assemblage  on  the  island  was  not  an 
act  of  treason. 

Let  us  examine  the  first  ground:  it  is  because  Aaron 
Burr,  not  being  present  on  the  Island  at  the  time  of  the 
assemblage,  cannot  be  a  principal  in  the  treason  within 
the  constitutional  definition  nor  within  the  laws  of  En- 
gland. 

In  many  of  the  general  reflections  expressed  by  the 
gentleman  under  this  head  I  perfectly  accord  with  him; 
as  that  the  constitution  intended  to  guard  against  arbitrary 
and  constructive  treasons;  that  the  principles  of  sound 
reason  and  liberty  require  their  exclusion.  I  have  no  ob- 
jection either  to  his  position,  that  the  constitution  is  to  be 
interpreted  by  the  rules  of  reason  and  of  moral  right.  I 
fear,  however,  that  I  shall  find  it  difficult  to  accommodate 
both  the  gentlemen  who  have  spoken  in  support  of  the 
motion;  for  while  Mr.  Wickham  demands  reason  for  the 
guide  of  our  interpretation,  Mr.  Randolph  exclaims  "save 
us  from  the  deductions  of  common  sense."  A  kind  of  rea- 
son which  is  not  common  sense,  would,  indeed,  be  adopt- 


the  Trial  of  Aaron  Burr.  287 

ed  to  the  joint  purposes  of  both  the  gentlemen;  but  as 
that  is  a  species  of  reason  of  which  I  have  no  very  dis- 
tinct conception,  I  hope  the  gentlemen  will  excuse  me  for 
not  employing  it.  Let  us  return  to  Mr.  Wickham.  Hav- 
ing read  to  us  the  constitutional  definition  of  treason  and 
given  us  the  rule  by  which  it  was  to  be  interpreted,  it 
was  natural  to  expect  that  he  would  have  proceeded  di- 
rectly to  apply  that  rule  to  the  definition  and  give  us  the 
result.  But  while  we  were  expecting  this — even  while  we 
have  our  eyes  upon  the  gentleman,  he  vanishes  like  a  spirit 
from  American  ground,  and  we  see  no  more  of  him,  until 
re-surging  in  England,  by  a  kind  of  intellectual  magic, 
we  find  him  in  the  middle  of  the  16th  century,  complain- 
ing most  dolefully  of  the  state  of  my  lord  Coke's  bowels. 
Before  we  follow  him  in  this  excursion,  let  us  enquire 
what  it  was  that  made  the  gentleman  start  with  such  ter- 
ror from  the  regular  track  of  his  argument.  It  was,  sir,  the 
decision  of  the  supreme  court  in  the  case  of  Bollman  and 
Swartwout:  it  was  that  judicial  exposition  of  the  consti- 
tution by  the  highest  court  of  the  nation,  upon  the  very 
point  which  the  gentleman  was  considering.  Sir,  if  the 
gentleman  had  believed  this  decision  favourable  to  him, 
we  should  have  heard  of  it  in  the  beginning  of  his  argu- 
ment, for  the  path  of  enquiry  in  which  he  was,  led  him 
directly  to  it.  Interpreting  the  American  constitution,  he 
would  have  preferred  no  authority  to  that  of  the  supreme 
court  of  the  country.  Yes,  sir,  he  would  have  immediately 
seized  this  decision  with  avidity:  he  would  have  set  it  be- 
fore you  in  every  possible  light:  he  would  have  illustrated 
it;  he  would  have  adorned  it;  he  would  have  expanded  it; 
ycu  would  have  seen  it,  under  the  action  of  his  genius, 
loom  with  all  the  varying  grandeur  of  our  mountains  in 
the  morning's  sun.  He  would  not  have  relinquished  this 
decision,  for  the  common  law;  he  would  not  have  deserted 
a  rock  so  broad  and  so  solid,  to  walk  upon  the  waves  of 


288  Mr.  TVirVs  Speech  on 

the  Atlantic.  But  he  knew,  sir,  that  this  decision  was 
against  him:  he  felt,  too,  rhat  it  closed  against  him  com- 
pletely the  very  point  which  he  was  labouring.  Hence  it 
was  that  the  decision  was  kept  so  sedulously  out  of  view, 
until  from  the  exploded  materials  of  the  common  law,  he 
thought  he  had  reared  a  Gothic  edifice,  so  huge  and  so 
dark  as  quite  to  overshadow  and  eclipse  it.  Let  us  bring 
it  from  this  obscurity  into  the  face  of  day.  We  who  are 
seeking  truth  and  not  victory,  whether  right  or  wrong, 
have  no  reason  to  turn  our  eyes  from  any  source  of  light 
which  presents  itself;  and  least  of  all  from  a  source  so 
high  and  so  respectable  as  the  decision  of  the  supreme 
court  of  the  United  States.  Let  it  be  remembered  that  the 
enquiry  is,  whether  presence  at  the  overt  act  is  necessary 
to  mak e  a  man  a  traitor:  it  is  necessary,  say  the  gentle- 
men; what  says  the  supreme  court?  "  It  is  not  the  inten- 
tion of  the  court  to  say  that  no  individual  can  be  guilty  of 
this  crime  who  has  not  appeared  in  arms  against  his  coun- 
try: on  the  contrary,  if  war  be  actually  levied,  that  is,  if  a 
body  of  men  be  assembled  for  the  purpose  of  effecting  by 
force  a  treasonable  purpose,  all  those  who  form  any  part, 
however  minute  or  however  remote  from  the  scene  of  ac- 
tion, and  who  are  actually  leagued  in  the  general  conspi- 
racy, are  to  be  considered  as  traitors"*  Here  then  we 
find  the  court  so  far  from  requiring  presence,  that  they 
expressly  declare  that  hoxvever  remote  the  accused  may 
have  been  from  the  scene  of  the  treasonable  assemblage, 
he  is  still  involved  in  the  guilt  of  that  assemblage;  that  he 
was  leagued  in  the  general  conspiracy  which  produced  it, 
is  sufficient  to  make  the  overt  act  his  own.  The  supreme 
court  being  of  that  opinion,  proceeded  to  an  elaborate  ex- 
amination of  the  evidence  to  ascertain  whether  there  had 

*  Decision  of  the  supreme  court,  in  the  case  of  Boliman  and 
Swart  wout. 


the  Trial  of  Aaron  Burr.  289 

been  a  treasonable  assemblage.  They  look  to  the  deposi- 
tions of  Gen.  Eaton  and  Gen.  Wilkinson,  to  the  cyphered 
letter,  to  the  declaration  of  Swartwout,  that  Burr  was  levy- 
ing an  armed  body  of  seven  thousand  men;  and  they  look 
to  these  parts  of  the  evidence  expressly  for  the  purpose  of 
discovering  whether  it  was  probable  that  Burr  had  ac 
tually  brought  those  men  together;  not  whether  Bollman 
and  Swartwout  were  present  at  any  such  assemblage;  they 
knew  that  if  any  such  assemblage  had  taken  place,  Boll- 
man  and  Swartwout  must  have  been,  at  the  time,  at  the 
city  of  Orleans,  or  on  their  way  thither:  indeed,  the  whole 
reasoning  of  the  court  proceeded  on  the  fact,  as  admitted, 
of  the  prisoner's  absence.  Why  then,  the  laborious  inves- 
tigation which  the  court  make  as  to  the  probability  of 
Burros  having  brought  his  men  or  any  part  of  them  to- 
gether, unless  the  guilt  of  that  assemblage  was  to  be  im- 
puted to  Bollman  and  Swartwout?  If  their  absence  had 
been  sufficient  to  excuse  them,  that  fact  was  admitted, 
and  the  enquiry  would  have  been  a  very  short  one.  But 
the  court  having  previously  decided  that  the  fact  of  pre- 
sence or  absence  was  unimportant,  that  it  made  no  odds 
how  far  distant  the  accused  might  be  from  the  treasonable 
assemblage,  it  became  the  unavoidable  duty  of  the  court 
to  proceed  to  the  enquiry  whether  any  such  assemblage 
had  taken  place;  and  if  the  evidence  had  manifested  that 
fact  to  their  satisfaction,  it  is  clear  that  in  the  opinion  of 
that  court,  the  prisoners  would  have  been  as  deeply  in- 
volved in  the  guilt  of  that  assemblage  as  any  of  those  who 
actually  composed  it. 

The  counsel  knew  that  their  first  point  was  met  directly 
by  the  counter  authority  of  the  supreme  court;  they  have 
impliedly,  if  not  expressly,  admitted  it;  hence  they  have 
been  reduced  to  the  necessity  of  taking  the  bold  and  diffi- 
cult ground  that  the  passage  which  I  have  read  is  extra- 
judicial— a  mere  obiter  dictum.  They  have  said  this;  but 

Vol.  II.  2  O 


290  Mr.  Wirt's  Speech  on 

they  have  not  attempted  to  show  it.  Give  me  leave  to  show 
that  it  i.i  not  an  obiter  dictum:  that  it  is  not  extra  judicial; 
but  that  it  is  a  direct  adjudication  of  a  point  immediately 
before  them.  The  court  made  no  formal  division  of  the 
subject.  It  divided  itself.  The  arrest  of  Bollman  and 
Swartvvout  at  New  Orleans,  and  the  fact  that  they  had  not 
been  present  at  any  assemblage  of  the  traitors  in  arms, 
were  notorious  and  admitted.  The  case  necessarily  pre- 
sented to  the  court  three  distinct  questions:  1.  Are  these 
men  leagued  in  any  treasonable  conspiracy"?  2.  Is  the  fact 
of  their  being  leagued  with  it,  sufficient  of  itself,  to  impli- 
cate them  in  the  guilt  of  any  overt  act  of  that  treason?  or 
is  it  necessary  that  they  should  actually  have  borne  a  part 
in  that  overt  act?  3.  Has  there  been  an  overt  act?  Now  if 
the  court  had  been  satisfied  that  there  had  been  an  overt 
act,  and  that  these  men  were  leagued  in  the  conspiracy 
which  produced  it,  still  it  would  have  remained  a  distinct 
and  substantive  question,  whether  their  absence  from  the 
overt  act,  and  their  having  no  immediate  hand  in  it,  did 
not  discharge  them  from  the  constitutional  guilt  of  levying 
war;  for  although  leagued  in  the  conspiracy  and  although 
there  might  have  been  an  overt  act,  these  men  would  have 
been  innocent,  if  presence  at  the  overt  act  was  necessary 
to  make  them  guilty.  The  question,  then,  of  presence  or 
absence,  was  a  question  really  presented  by  the  case  of 
Bollman  and  Swartwout:  it  was  one  important  to  the  de- 
cision of  that  case;  and  the  court,  thinking  it  so,  did  con- 
sider and  decide  it  in  direct  opposition  to  the  principle 
contended  for  on  the  other  side. 

Here,  sir,  having  the  authority  of  the  supreme  court  on 
my  side,  I  might  safely  dismiss  the  gentleman's  first  point. 
But  Mr.  Randolph  seems  to  think  it  doubtful  whether  you 
ought  to  be  bound  by  that  authority,  even  admitting  it  to 
be  a  regular  judicial  determination  of  this  question;  for 
he  made  a  very  pathetic  and  affecting  apostrophe  to  the 
situation  in  which  you  would  be  placed,  if  you  differed 


the  Trial  of  Aaron  Burr.  291 

from  this  opinion  of  the  supreme  court.  I  can  discern  no- 
thing very  tragical  in  your  situation; — a  principle  of  law, 
solemnly  adjudged  by  the  supreme  court,  becomes,  I  ap- 
prehend, the  law  of  the  land:  all  the  inferior  courts  of  the 
United  States  are  bound  by  it.  To  say  that  they  are  not 
bound  by  it,  is  to  disorganize  the  whole  judiciary  system, 
to  confound  the  distinctions  and  grades  of  the  courts,  to 
banish  all  certainty  and  stability  from  the  law,  and  to  de- 
stroy all  uniformity  of  decision.  If  you,  sirs,  sitting  as  a 
circuit  court,  are  not  bound  by  the  adjudications  of  the 
supreme  court  in  this  case,  neither  would  any  other  cir- 
cuit court  in  the  union  be  bound  by  it:  and  the  result 
might  be  and  certainly  would  be  that  what  would  be  trea- 
son in  one  circuit,  would  not  be  treason  in  another:  and  a 
man  might  be  hung  in  Pennsylvania  for  an  act  against  the 
United  States,  in  which  he  would  be  held  perfectly  inno- 
cent in  Virginia:  thus  treason  against  the  United  States 
would  still  be  unsettled  and  fluctuating,  and  the  object  of 
the  constitution  in  defining  it,  would  be  disappointed  and 
defeated.  I  trust  that  we  are  not  prepared  to  rush  into  this 
wide  disorder  and  confusion;  but  that  we  shall  temperately 
and  regularly  conform  to  the  decrees  of  that  parent  court, 
of  which  this  is  a  mere  branch,  until  those  decrees  shall 
be  changed  by  the  same  high  authority  which  created 
them. 

But  instead  of  reposing  on  the  authority  of  that  decision, 
let  us  go  further,  and  let  us  indulge  the  gentlemen  with 
the  enquiry  whether  that  decision  is  in  conformity  with 
the  constitution  of  the  United  States  and  the  laws  of  En- 
gland. 

In  interpreting  the  constitution  let  us  apply  to  it  the 
gentleman's  own  principles;  the  rules  of  reason  and  of 
moral  right. 

That  a  law  should  be  so  construed  as  to  advance  the  re- 
medy, and  repress  the  mischief,  is  not  more  a  rule  of  com- 


292  Mr.  WirVs  Speech  on 

mon  law,  than  a  principle  of  reason;  and  in  reason,  it  ap- 
plies to  penal  as  well  as  remedial  laws:  so  also,  the  common 
law  maxim  that  a  law,  as  well  as  a  covenant,  should  be  so 
construed  as  that  its  object  may  rather  prevail  than  perish, 
is  one  of  the  plainest  dictates  of  common  sense.  Apply  these 
principles  to  the  constitution.  Gentlemen  have  said  that  its 
object  was  to  prevent  the  people  from  being  harassed  by 
arbitrary  and  constructive  treason.  But  its  object,  I  pre- 
sume, was  not  to  declare  that  there  was  no  such  crime.  It 
certainly  did  not  mean  to  encourage  treason.  It  meant  to 
recognize  the  existence  of  the  crime  and  to  provide  for  its 
punishment.  The  same  liberties  of  the  people  which  re- 
quired that  the  offence  should  be  defined-,  circumscribed 
and  limited,  required  also  that  it  should  be  certainly  and 
deeply  punished:  and  the  framers  of  the  constitution,  in- 
formed by  the  examples  of  Greece  and  Rome,  and  fore- 
seeing that  the  liberties  of  this  republic  might,  one  day  or 
other,  be  seized  by  the  daring  ambition  of  some  domestic 
usurper,  have  given  peculiar  importance  and  solemnity  to 
the  crime  by  engrafting  it  upon  the  constitution.  But  they 
have  done  this  in  vain,  if  the  construction  contended  for 
on  the  other  side  is  to  prevail.  If  it  requires  actual  pre- 
sence at  the  scene  of  the  assemblage  to  involve  a  man  in 
the  guilt  of  treason,  how  easy  will  it  be  for  the  principal 
traitor  to  avow  this  guilt  and  escape  punishment  for  ever? 
He  may  secretly  wander  like  a  demon  of  darkness  from 
one  end  of  the  continent  to  the  other;  he  may  pour  poison 
into  the  simple  and  unsuspecting  minds  of  his  country- 
men; he  may  seduce  them  into  a  love  of  his  person;  may 
connect  them  in  his  plots;  attach  them  to  his  glory;  he 
may  prepare  the  whole  mechanism  of  the  stupendous  and 
destructive  engine  and  put  it  in  motion;  let  the  rest  be 
done  by  his  agents;  let  him  keep  himself  only  from  the 
scene  of  the  assemblage  or  the  immediate  spot  of  battle, 
and  he  is  innocent  in  law,  while  those  whom  he  has  de- 


the  Trial  of  Aaron  Burr.  293 

hided,  are  to  suffer  the  death  of  traitors.  Is  this  reason?  Is 
this  moral  right?  Is  this  a  mean  of  preventing  treason?  Or 
is  it  not  rather,  in  truth,  a  direct  invitation  to  it?  Sir,  it  is 
obvious,  that  neither  reason  nor  moral  right  require  actual 
presence  at  the  overt  act  to  constitute  the  guilt  of  treason: 
nor  can  a  sound  mind,  or  a  sound  heart  doubt  one  mo- 
ment, between  the  comparative  guilt  of  Aaron  Burr  (the 
prime  mover  of  the  whole  mischief)  and  of  the  poor  men 
on  Blannerhasset's  island,  who  called  themselves  Burr's 
men.  There  is  a  moral  sense  much  more  unerring  on 
questions  of  this  sort,  than  the  frigid  deductions  of  jurists 
or  philosophers.  The  decision  of  the  supreme  court,  sir, 
is  so  far  from  being  impeachable  on  the  ground  of  reason 
and  of  moral  right,  that  it  stands  supported  by  their  most 
obvious  and  palpable  dictates.  Give  to  the  constitution 
the  construction  contended  for  on  the  other  side,  and  you 
might  as  well  expunge  the  crime  from  your  criminal  code: 
nay,  you  had  better  do  it;  for  by  this  construction  you 
hold  out  to  ambition  and  talents,  the  lure  of  impunity; 
while  you  loose  the  vengeance  of  the  law  on  the  compa- 
ratively innocent. 

Sir,  the  decision  of  the  supreme  court  is  equally  sup- 
ported by  the  law  of  England.  Lord  Coke,  commenting 
on  those  words  of  the  statute  of  Edward,  which  make  our 
constitutional  definition  of  treason,  says,  "  if  many  con- 
spire to  levy  war,  and  some  of  them  do  levy  the  same  ac- 
cording to  the  conspiracy,  this  is  high  treason  in  all,  for  in 
treason  all  are  principals  when  war  is  levied."  3  Inst.  9.  In 
page  16,  he  says,  that  although  the  statute  of  Mary,  which 
first  made  counterfeiting  the  privy  signet  or  sign  manuel, 
high  treason,  says  nothing  of  aiders,  or  consenters,  "  yet 
they  are  within  the  purview  of  this  statute,  for  there  be  no 
accessories  in  high  treason."  So  also  in  page  21,  he  says, 
"  In  high  treason  there  is  no  accessories,  but  all  be  prin- 
cipals; and  therefore,  whatever  act  or  consent  will  make 


294  Mr.  Wirt's  Speech  on 

a  man  accessory  to  a  felony  before  the  act  done,  will  make 
him  a  principal  in  high  treason."  In  page  131  he  savs, 
"it  is  a  sure  rule  in  law  that  in  aha  proditione  nullus  potest 
esse  accessorius,  sed principalis  solum  modo;"  and  in  illus- 
tration of  the  rule  he  puts  this  case;  "  if  any  man  commit 
high  treason,  and  thereby  becometh  a  traitor,  if  any  other 
man,  knowing  him  to  be  a  traitor,  doth  receive,  comfort 
and  aid  him,  he  is  guilty  of  treason,  for  that  there  be  no 
accessory  in  high  treason."  The  gentleman,  indeed,  ad- 
mits, that  according  to  Coke's  authority,  their  client,  al- 
though absent,  might  be  a  principal  in  the  act  of  treason. 
But  Coke,  they  say,  had  no  bowels;  he  was  hard-hearted 
and  cruel;  his  thirst  for  blood  was  so  great  that  it  misled 
his  understanding.   Coke,  however,  does  not  state  the  po- 
sitions which  I  have  read,  on  his  own  authority:  on  the 
contrary  he  cites  in  the  margin  the  authorities  on  which 
he  bottoms  them,  and  most  ancient  and  respectable  au- 
thorities they  are.  But,  to  gratify  the  gentlemen,  let  us 
put  Coke  aside:   What  will  they  say  to  Lord  Hale?  Did 
any  fierce  and  savage  passion  agitate  his  breast,  or  darken 
the  horizon  of  his  understanding?  O!  no,  sir;  no  spot  ever 
soiled  the  holy  ermine  of  his  office;  mild,  patient,  benevo- 
lent; halcyon  peace  in  his  breast,  with  a  mind  beaming  the 
effulgence  of  noon-day,  and  with  a  seraph's  soul,  he  sat 
upon  the  bench,  like  a  descended  god! — Yet  this  judge 
has  laid  down  the  doctrine  for  which  I  contend,  in  terms 
as  distinct  and  emphatic  as  those  of  Lord  Coke.  Here  Mr. 
Wirt  read  1  Hale's  Hist.  Pleas  of  the  Crown,  214,  339, 
323,  328,  613. — Hawkins  and  Foster,  support  the  same 
doctrines.  1  Hawk.  ch.  17,  sec.  39;  2  Hawk.  ch.  29,  sec. 
2.  Foster  341. 

I  admit  that  judge  Tucker  has  combated  the  doctrine, 
that  in  treason  all  are  principals.  I  admit  the  truth  of  all 
the  encomiums  which  the  counsel  for  the  defendant  have 
pronounced  on  that  gentleman.  He  has  all  the  illumina- 


the  Trial  of  Aaron  Burr.  295 

tion  of  mind  and  all  the  virtues  of  heart,  which  they,  with 
the  view  of  enhancing  the  weight  of  his  authority,  have 
been  pleased  to  ascribe  to  him.  What  they  have  said  of 
him,  from  policy,  I  can  say  of  him,  from  my  heart,  for  I 
know  it  to  be  true.  Yet  give  me  leave,  sir,  to  examine, 
very  briefly,  his  argument  upon  this  subject.  His  object 
is  to  prove,  that  the  position  "  in  high  treason  all  are  prin- 
cipals," is  not  law  in  England.  The  mode  which  he 
adopts  to  prove  his  point  is  this:  he  collates  all  the  au- 
thorities which  have  supported  this  doctrine,  and  tracing 
it  up,  with  patient  and  laborious  perseverence,  with  the 
view,  peter e  fontes,  he  finds  the  first  spring  in  the  reign 
of  Henry  VI.  That  case  is  reported  in  the  year  book  1 
Henry  VI.  5,  and  is  very  nearly  as  stated  by  Mr.  Tucker 
from  Stanford.  It  is  simply  the  case  of  a  man  who  broke 
a  prison  and  let  out  traitors.  Stanford  says  it  was  adjudg- 
ed petit  treason;  the  year  book  merely  says,  that  he  was 
drawn  and  hanged,  a  sentence  which  in  those  days  when 
the  notions  and  punishment  of  treason  (notwithstanding 
the  statute  of  Edward)  remained  still  unsettled,  is  certain- 
ly no  very  unequivocal  proof  that  this  crime  was  petty- 
treason.  Mr.  Tucker  thinks  this  case  not  correctly  re- 
ported, and  that  the  grounds  of  the  judgment  seem  not 
well  understood.  It  is  to  be  recollected,  however,  that 
these  year  books,  as  we  are  told  by  Blackstone,  serve  as 
indices  to  the  records  in  the  several  offices  in  Westmin- 
ster; Coke,  then,  Hale,  Hawkins,  Foster,  and  all  those 
authors  who  have  relied  on  this  case  as  establishing  the 
doctrine  in  question,  guided  by  the  marginal  reference  in 
the  year  book,  had  it  in  their  power  to  examine  the  whole 
original  record  in  the  case,  and  thereby  to  understand  the 
entire  grounds  on  which  that  case  proceeded.  From  their 
great  industry  and  their  prodigious  research,  there  can  be 
no  doubt  that  they  did  so,  and  that  they  have  therefore 
stated  the  principles  of  this  case  correctly.  Chief  Justice 


296  Mr.  WirVs  Speech  on 

Hussey,  in  the  3  Henry  VII.  10,  about  sixty  years  after 
the  first  decision,  and  consequently  with  much  better 
means  of  understanding  its  nature,  extent  and  boundaries 
than  we  can  possess,  refers  to  it  as  asserting  the  doctrine, 
that  in  treason  there  are  no  accessories,  but  all  are  princi- 
pals. Nor  is  it  to  be  believed  that  this  doctrine  originated 
in  the  reign  of  Henry  VI.  The  earliest  reported  case  in- 
deed which  has  come  down  to  us,  occurred  in  the  first 
year  of  that  reign.  There  is  nothing,  however,  in  the 
manner  of  the  report  which  marks  it  as  a  case  of  the  first 
impression;  on  the  contrary  the  sentence  seems  to  have 
been  a  thing  of  course,  and  the  judges  of  that  day  appear, 
in  the  language  of  Blackstone,  to  be  merely  pronouncing 
the  immemorial  custom  of  the  land.  The  learned  and  la- 
borious Hawkins,  speaking,  no  doubt,  after  the  most  pro- 
found and  extensive  research,  declares,  in  a  passage  be- 
fore cited,  that  it  seems  to  have  been  never  doubted  that 
in  treason  all  are  principals.  And  most  certainly,  from  a 
very  early  period  in  the  fifteenth  century  to  the  present 
day,  that  doctrine  has  not  been  questioned  in  England. 
After  such  a  lapse  of  years  and  centuries,  after  such  full 
and  perfect  consent  and  concurrence  among  all  the  judges 
and  all  the  writers  of  England,  it  would  be  bold  in  us  to 
say,  that  this  is  not  the  law  of  England;  and  after  all,  the 
learned  judge  Tucker  rests  the  fabric  of  his  reasoning  on 
the  ground  of  the  imperfection  of  the  first  report;  an  ob- 
stacle which,  however  insuperable  to  him,  was  easily  to 
be  surmounted  by  those  great  men  who  had  access  to  the 
original  record;  and  who  having  that  access,  have  affirmed 
that  the  case  justified  the  doctrine  which  they  advance. 
Let  me  conclude  my  remarks  on  judge  Tucker  by  ob- 
serving, that  however  deeply  and  sincerely  I  revere  him, 
yet  certainly  when  the  question  is  "  what  is  the  law  of 
England,"  it  cannot  be  considered  as  disrespectful  to  our 
learned  and  virtuous  countryman  to  prefer  the  authority 


the  Trial  of  Aaron  Burr.  297 

of  such  men  as  Coke,  Hale,  Hawkins  and  Foster,  to  his. 
It  is  on  the  authority  of  those  distinguished  men  I  shall 
rest  my  conclusion,  that  the  opinion  of  the  supreme 
court  of  the  United  States  is  in  harmony  with  the  English 
law. 

But  we  are  told  by  Mr.  Wickham,  that  all  this  is  ele- 
mentary and  theoretic:  that  there  are  no  practical  decisions 
worthy  of  respect  which  maintain  the  principle.  Suppose 
this  were  so,  would  any  judge  require  higher  authority 
for  the  law  of  England  than  such  names  as  those  which 
I  have  just  mentioned;  would  a  case  from  the  year  books, 
decided  by  Hussey  or  Rian,  or  a  case  from  the  State 
Trials,  decided  by  Brumley,  Jeffries,  or  even  Holt  him- 
self, be  higher  authority  than  Coke  and  Hale,  Hawkins 
and  Foster?  Certainly  not.  The  three  cases,  however, 
from  the  year  books,  in  the  reigns  of  Henry  VI.  and  VII. 
on  which  judge  Tucker  comments,  are  adjudged  cases 
which  avow  the  principle.  In  addition  to  these,  Coke,  in 
the  margin  of  the  passages  before  read,  cites  several  cases 
in  the  reign  of  Edward  III.  which  I  have  not  had  time  to 
examine,  but  which  it  is  presumable  from  his  learning  and 
accuracy,  are  properly  cited  in  support  of  this  doctrine. 

Mr.  Wickham  says,  that  the  books  show  only  two  cases 
of  accessories  before  the  fact  having  been  adjudged  guilty 
as  principals:  but  he  admits  that  there  are  several  cases  of 
accessories  after  the  fact  being  so  adjudged;  and  he  seems 
to  be  apprehensive  that  we  shall  reason  from  these  later 
cases  to  the  case  of  an  accessory  before  the  fact.  I  do  not 
know  that  it  is  important,  but  the  truth  is  that  the  gentle- 
man, unintentionally,  no  doubt,  has  inverted  the  order  of 
guilt  in  this  case;  in  reason,  the  accessory  before  the  fact, 
he  who  procures  the  act,  or  assists  in  bringing  it  about,  is 
certainly  much  more  guilty  than  the  accessory  after  the 
fact,  who  having  no  previous  knowledge  of  the  fact,  much 
less  any  agency  or  instrumentality  in  bringing  it  about, 

Vol.  IL  2P 


298  Mr.  WirVs  Speech  on 

merely  receives  and  comforts  the  man  who  has  done  it. 
This  line  of  discrimination,  so  strongly  drawn  by  reason, 
was  long  respected  by  the  law  of  England,  and  so  far  were 
accessories  after  the  fact  from  occupying  the  worst  ground, 
that  while  it  was  never  doubted  that  accessories  before 
the  fact  were  guilty  as  principals,  it  was  very  long  doubted 
whether  accessories  after  the  fact  were  so  guilty.  This 
we  are  expressly  told  by  Hawkins: — 2  Hawk.  ch.  29,  §  3. 
I  think,  however,  I  shall  show  by  and  by  that  these  ac- 
cessorial doctrines  have  nothing  to  do  with  the  case  at  bar. 
The  gentleman  next  read  the  case  of  Sir  Nicholas 
Throckmorton's  sufferings,  as  they  are  collected  into  a 
Gorgon's  head  by  judge  Tucker.  We  do  not  rely  upon 
the  authority  of  that  case;  and  the  gentleman,  by  reading 
it,  has  proved  only  what  we  readily  admit,  that  Brumley 
was  a  judicial  tyrant,  and  that  Throckmorton  was  cruelly 
and  barbarously  oppressed.  I  can  see  but  two  motives 
which  the  gentleman  could  have  had  in  view  in  reading 
this  case  with  a  countenance  and  cadence  of  such  pecu- 
liar pathos;  the  first  contains  an  implication  not  very  re- 
spectful to  the  court:  that  it  was  necessary  to  hold  up  to 
this  court,  in  terroremy  the  immortal  infamy  of  Brumley's 
name:  the  second  to  excite  our  sympathies,  under  the 
hope  that  when  once  set  afloat,  for  the  want  of  some  other 
living  object  they  might  attach  themselves  to  his  client. 
It  was  with  the  same  views,  I  presume,  that  the  gentle- 
man gave  us  the  pathetic  and  affecting  story  of  the  lady 
Lyle  as  it  is  touched  by  the  chaste  and  delicate  pencil  of 
Hume.  It  was  with  the  same  views,  also,  that  he  recited 
from  the  same  author  the  deep,  perfidious,  and  bloody 
horrors  of  a  Kirk  and  a  Jeffries.  Sensible  that  there  was 
nothing  in  this  trial  or  in  the  virtues  of  his  client  to  in- 
vest us,  he  borrowed  the  sufferings  and  the  virtues  of  a 
Throckmorton,  and  a  lady  Lyle,  to  set  our  hearts  a  bleed- 
ing; thinking  that  our  pity  thus  excited,  would  be  gene- 


the  Trial  of  Aaron  Burr.  299 

rously  transferred,  assigned  and  set  over  by  way  of 
indorsement,  to  his  client.  I  congratulate  the  gentleman 
upon  the  ingenuity  of  the  device:  the  only  defect  in  it  is 
the  great  hazard,  that  while  we  are  running  parallels  be- 
tween his  client  and  the  dramatis  persons  introduced  from 
Hume,  we  shall  find  among  them  an  apter  prototype  for 
him  than  in  the  virtuous  and  manly  Throckmorton,  or  the 
simple,  innocent  and  humane  lady  Lyle. 

But  we  are  told  that,  however  the  case  may  have  been 
prior  to  the  revolution  of  1688,  since  that  period  they 
have  leaned  the  other  way,  and  go  to  show  that  accessorial 
acts  will  not  make  a  principal  in  treason.  How  is  this 
conclusion  obtained:  by  any  adjudged  case?  No.  By  any 
obiter  dictum  of  a  judge?  No. — How  then  does  the  gen- 
tleman support  the  idea  of  this  change  in  the  English  law? 
He  infers  it  from  the  impunity  of  some  of  those  who 
fought  the  pretender's  battles  or  aided  him  in  his  flight. 
This  is  a  new  way  of  settling  legal  principles.  Sir,  this 
was  the  mere  policy  of  the  house  of  Hanover.  The  pre- 
tensions of  the  Stuarts  had  divided  the  British  nation. 
Their  adherents  were  many  and  zealous.  Their  preten- 
sions were  crushed  in  battle.  Two  courses  were,  then, 
open  to  the  reigning  monarch;  either  by  clemency  and 
forbearance  to  assuage  the  animosity  of  his  enemies,  and 
prop  and  brace  his  throne  with  the  affections  of  his  peo- 
ple; or  to  pursue  his  enemies  with  vengeance;  to  drive 
them  to  desperation;  to  disgust  his  friends  by  needless  and 
wanton  cruelty;  and  to  unsettle  and  float  his  throne  in  the 
blood  of  his  subjects.  He  choose  the  former  course;  and 
from  this  politic  or  magnanimous  forbearance,  it  is  ar- 
gued, the  law  of  treason  was  changed.  To  prevent  this 
inference,  according  to  the  reasoning  of  the  gentleman,  it 
was  necessary  to  have  beheaded  or  hung  up  every  human 
being  who  even  aided  the  unfortunate  Charles  in  his  flight. 
Mr.  Wickham  has  mentioned  Miss  M'Donald — and  he 


300  Mr.  Wirt's  Speech  on 

would  have  had  the  monarch  to  have  hazarded  the  indig- 
nation and  revolt  of  a  generous  people,  by  seizing  that 
beautiful  and  romantic  enthusiast,  Flora  M'Donald,  and 
dragging  her  from  her  native  mountains  in  the  isle  of  Sky, 
to  a  prison,  and  to  death.  We  are  told,  indeed,  by  Doc- 
tor Johnson,  in  his  tour  to  the  Hebrides,  that  this  step, 
impolitic  as  it  was,  nevertheless  was  hazarded;  hazarded 
but  partially  though;  she  was  carried  to  London;  but,  to- 
gether with  M'Cleod  who  aided  in  the  same  flight,  she 
was  dismissed,  on  the  pretext  of  the  want  of  evidence. 
But  certainly  a  forbearance  to  punish  under  an  existing 
law,  is  no  argument  of  the  change  of  that  law. 

The  gentleman,  unable  to  sustain  either  by  adjudication 
or  dictumth'is  novel  idea  that  the  law  of  treason  is  changed 
since  the  revolution  of  1688,  proceeds  still  farther  in  the 
attempt  to  support  it  by  inference,  and  next  infers  from 
the  special  form  of  the  indictment  in  Foster,  3 — 6,  that 
presence  at  the  overt  act  is  indispensable  to  the  treason 
of  levying  war.  That  indictment  lays  two  overt  acts  of 
the  treason;  first  the  general  overt  act  of  assembling  with 
an  armed. multitude  and  levying  war;  secondly  the  enter- 
ing and  taking  the  town  and  castle  of  Carlisle;  from  the 
special  nature  of  which  last  overt  act  the  gentleman  de- 
duces the  conclusion,  that  the  first  was  not  sufficient,  and 
that  the  last  must  necessarily  have  been  proven  to  sustain 
the  indictment;  but  is  it  any  where  decided  that  this 
second  overt  act  was  necessary?  On  the  contrary  in  lord 
Balmerino's  case  (10  St.  Tr.  605,)  also  cited  by  Mr. 
Wickham,  where  the  indictment  was  precisely  that  in 
Foster,  it  is  argued  by  the  counsel  for  the  crown  and  ad- 
mitted by  the  court,  in  effect,  that  the  proof  of  the  second 
overt  act  was  unnecessary;  that  it  was  immaterial  whether 
the  evidence  shown  him  to  have  entered  and  taken  the 
town  of  Carlisle  or  not;  that  it  would  be  sufficient  to  in- 
troduce evidence  to  the  first  overt  act — the  general  overt 


the  Trial  of  Aaron  Bitrr.  3u  I 

act  of  levying  war.  Hence  it  is  obvious  that  the  specifi- 
cation of  entering  and  taking  the  town  of  Carlisle  was  un- 
necessary and  superfluous;  therefore  no  inference  can  be 
fairly  drawn  from  the  insertion  of  it  in  the  indictment, 
But  it  is  strange  that  the  gentleman  should  attempt  to 
draw  from  the  mere  form  of  this  indictment  in  Foster,  the 
conclusion  that  the  law  of  England  was  changed,  and  that 
an  accessorial  act  would  no  longer  make  a  principal  in 
treason,  when  Foster  himself  expressly  lays  down  the  re- 
verse of  this  principle,  in  the  passage  which  I  have  before 
cited,  and  declares  that  all  who  are  leagued  in  the  con- 
spiracy to  levy  war,  are  guilty  of  the  levying  whether 
present  or  absent — whether  the  war  was  levied  by  a  few 
or  by  all.  The  same  remark  applies  equally  to  the  inter- 
ference attempted  to  be  drawn  by  Mr.  Wickham  from 
the  case  of  Deacon  and  Wedderburne,  reported  by  the 
same  author. 

Other  remarks  of  the  gentleman  under  this  head  as  to 
accessories  being  the  mere  creatures  of  the  common  law, 
and  the  common  law  not  existing  in  this  country,  will  be 
more  properly  noticed  under  another  head. 

I  hope  it  may  now  be  justly  considered  as  proven,  that, 
whether  we  look  to  the  laws  of  England,  or  to  the  con- 
stitution of  the  United  States,  as  expounded  by  the  rules 
of  reason  and  of  moral  right,  or  as  expounded  by  the  su- 
preme court  of  the  United  States,  the  prisoner's  presence 
on  Blannerhasset's  island  at  the  time  of  the  overt  act  was 
not  necessary  to  the  constitution  of  his  guilt;  and  there- 
fore that  there  is  nothing  in  the  gentleman's  first  objec- 
tion to  prohibit  the  introduction  of  farther  proof. 

But  if,  after  all,  this  court  shoul.d  be  of  opinion  that  the 
prisoner's  presence  on  the  island  was  necessary  to  make 
this  an  overt  act  of  war,  is  not  this  a  question  for  the  jury? 
The  question  whether  there  has  been  an  overt  act  of  war, 
or  not,  is  a  mixed  question  of  fact  and  law:  it  is  the  ques- 


302  Mr.  Wirt's  Speech  on 

tion  made  by  the  issue  in  this  case;  it  is  the  very  question 
which  the  jury  are  sworn  to  decide.  If,  for  this  objection 
that  presence  is  a  material  ingredient  in  the  composition 
of  the  act,  the  court  exclude  all  farther  evidence,  will  this 
not  amount  to  saying  that  we  have  not  proved  the  overt 
act  to  the  satisfaction  of  the  court;  that  the  evidence  we 
have  introduced,  and  all  we  propose  to  introduce,  will  be 
insufficient  to  satisfy  the  court  of  the  overt  act?  And  will 
not  the  court,  hereby,  take  the  place  of  the  jury;  forestall 
them  in  the  very  question  which  they  are  sworn  to  try, 
and  snatch  it  from  them  by  a  coup  de  main?  Gentlemen, 
indeed,  try  to  give  this  question  a  legal  attitude,  by  con- 
tending  that  other  evidence  will  be  irrelevant  until  the  fact 
of  presence  shall  be  proven;  but,  then,  in  order  to  decide 
this  question  in  the  affirmative,  the  court  must  assume 
the  function  of  a  jury,  and  say  that  the  overt  act  is  not 
and  will  not  be  sufficiently  proved  without  it.  But  suppose 
this  question  as  to  the  necessity  of  presence,  a  question 
of  pure  law;  still  it  would  be  a  question  which  the  jury 
would  have  a  right  to  decide;  since  the  law  as  well  as  the 
fact  is  completely  within  their  power.  The  court  may, 
indeed,  after  all  the  evidence  shall  be  given,  instruct  the 
jury  as  to  the  law;  they  may  instruct  them  as  to  what  will 
constitute  an  overt  act  of  levying  war.  But  nothing  more 
clearly  shows  the  sovereign  power  and  control  of  the  jury 
both  over  the  law  and  fact  than  this;  that,  even,  after  such 
instruction  of  the  court,  the  jury  may  if  they  choose  de- 
cide the  case  in  opposition  to  such  instruction.  I  do  not 
say  that  they  will  do  it;  or  that  they  ought  to  do  it:  but  I 
say  that  they  may  do  it  if  their  conscience  shall  so  direct; 
and  I  say  this  by  the  way  of  showing  the  paramount  power 
of  the  jury,  over  the  very  question  now  sought  to  be 
withdrawn  from  them  and  given  to  the  court.  I  conclude 
this  point  with  assuming  it  as  proved,  that  actual  presence 
was  not  necessary  to  make  the  prisoner  a  principal  in  the 


the  Trial  of  Aaron  Burr.  303 

treason;  and  if  the  court  shall  think  it  was,  that  this  is  a 
question  which  cannot  be  taken  from  the  jury. 

This  objection  therefore  furnishes  no  legal  bar  to  the 
introduction  of  our  evidence. 

I  proceed  to  examine  the  gentleman's  second  point.  It 
is  this;  no  farther  evidence  is  admissible  under  this  indict- 
ment, because  the  fact  must  be  proved  as  laid;  and  as  the 
indictment  charges  the  prisoner  with  levying  war  on  the 
island  where  it  is  proven  he  was  not,  there  is  an  end  of 
the  case;  no  farther  evidence  can  be  let  in  under  this  in- 
dictment. 

Under  this  head  the  gentleman  began  by  commenting 
on  the  omission  of  the  word  public  in  the  indictment; 
"  why  did  not  the  attorney  for  the  United  States  charge 
the  prisoner  with  levying  public  war,  instead  of  merely 
charging  him  with  levying  war;  why  was  the  word  public 
left  out?"  and  then  with  a  countenance  insinuating  even 
more  than  his  expression,  he  asked,  "  whether  the  word 
public  was  omitted  to  render  the  indictment  more  palata- 
ble to  the  grand  jury?" 

The  answer  is  a  very  simple  one;  the  indictment  was 
drawn  from  an  authentic  copy  of  the  indictment  of  Fries; 
it  is  an  exact  transcript  of  that  indictment,  with  a  mere 
change  of  names.  There  the  word  public  is  not  found. 
Nor  is  it  necessary  that  it  should  there  be  found.  The  in- 
dictment pursues  the  constitution  and  act  of  congress, 
and  transfers  from  those  instruments  verbatim  the  defini- 
tion of  treason.  The  constitution  does  not  say  that  treason 
shall  consist  in  levying  public  war  against  the  United 
States;  but  simply  in  levying  war  against  them.  So  also 
is  the  act  of  congress.  An  indictment  pursuing  that  defi- 
nition in  express  terms  is  certainly  sufficient  to  all  intents 
and  purposes.  The  word  public  is  surely  of  no  impor- 
tance. The  gentleman  indeed,  on  the  second  day  of  hib 
argument,  admitted  that  it  was  of  no  importance:  and  ac- 


504  Mr.  Wirfs  Speech  on 

knowledged  his  error  in  saying,  that  this  was  the  first  in* 
dictment  which  had  omitted  it.  He  acknowledged  that  in 
the  second  indictment  of  Fries  it  was  omitted.  It  was 
natural  to  have  expected  that  the  gentleman,  on  this  dis- 
cover}*, would  have  retracted  the  ungenerous  insinuation 
that  the  word  had  been  intentionally  omitted  in  order  to 
render  the  indictment  more  palatable  to  the  grand  jury. 
He  thought  proper,  however,  to  let  the  insinuation  re- 
main where  it  was.  Be  it  so.  The  attorney  has  the  con- 
solation that  his  purity  is  to  be  estimated  by  his  country, 
and  not  by  the  prisoner  or  his  counsel. 

But  it  seems  that  the  indictment  charges  the  act  to 
have  been  done  with  divers  persons  unknown;  and  we  at- 
tempt to  prove  that  it  was  done  with  persons  who  were 
known.  This  is  an  objection  which  I  had  supposed  the 
manliness  of  the  gentleman's  understanding  would  have 
rejected.  He  thought  proper,  however,  in  the  dearth  of 
other  materials,  to  urge  it  with  his  wonted  spirit  and  to 
attempt  to  support  it  by  authorities.  He  does  not  pretend, 
indeed,  that  any  author,  elementary  or  practical,  has  ever 
asserted  that  this  is  necessary.  He  does  not  pretend  that 
any  judge  has  ever  declared  it  so.  But  he  infers  it  from 
the  specification  of  other  names  in  several  indictments, 
during  the  protectorship  of  Oliver  Cromwell.  He  cites 
the  cases  of  Hewitt  and  Mordaunt.  I  have  examined  those 
cases.  They  are  not  indictments  for  levying  war;  they 
charge  the  prisoners  with  delivering  military  commissions 
to  several  persons,  who  are  named,  in  behalf  of  Charles  II. 
Their  offence,  from  the  nature  of  it,  required  the  naming 
of  Charles  II.  and  those  to  whom  commissions  were  de- 
livered. But  in  the  treason  of  levying  war  the  most  usual 
form  is  to  charge  the  war  to  have  been  levied  with  per- 
sons unknown,  and  that  in  cases  where  the  persons  cer- 
tainly were  known.  Thus  lord  Balmerino  and  the  earls  of 
Kilmarnock  and  Cromartie -were  in  arms  together  on  the 


the  Trial  of  Aaron  Burr,  305 

field  of  Culloden.  They  were  taken  prisoners  together; 
they  were  severally  indicted  on  the  same  day  for  the  same 
offence;  arraigned  on  the  same  day;  and  although,  there- 
fore, it  is  clear  that  they  were  all  known  to  the  attorney 
for  the  crown,  yet  each  indictment  charges  them  to  have 
levied  war  with  persons  unknown.  The  gentleman  says  it 
is  not  enough  to  charge  the  prisoner  with  levying  war;  but 
that  in  the  overt  act  we  should  have  set  out  the  particular 
acts  which  were  done  by  the  prisoner,  and  the  evidence 
by  which  we  mean  to  charge  him.  I  deny,  sir,  that  this 
is  law.  It  is  a  question  strictly  legal,  and  therefore  is  to 
be  decided  by  authority.  East,  1  vol.  p.  116,  after  stating 
that  in  every  indictment  for  high  treason*,  the  particular 
species  of  treason  must  be  charged  in  the  very  terms  of 
the  statute  of  Edward,  as  the  substantial  offence,  adds 
that  "  then  some  overt  act  must  be  laid  as  the  means  made 
use  of  to  effectuate  the  traitorous  purpose."  He  proceeds, 
"  The  overt  acts  so  laid,  are,  in  truth,  the  charge  to  which 
the  prisoner  must  apply  his  defence.  And  therefore  it  is 
in  no  case  sufficient  to  allege  that  the  prisoner  compass- 
ed the  king's  death,  or  that  he  levied  war  against  him,  or 
adhered  to  his  enemies;  for  upon  a  charge  so  general  and 
indefinite  he  cannot  know  what  acts  he  is  to  defend.  The 
particular  acts  of  compassing  and  adherence  must  be  set 
forth;  and  in  the  other  instance"  (that  of  levying  war) 
"  it  must  be  alleged  that  he  assembled  with  a  multitude 
armed  and  arrayed  in  a  warlike  manner  and  levied  war;" 
and  thus  in  our  indictment  it  is  alleged.  East  proceeds, 
"  The  indictments  against  Damaree  and  Purchase  for 
pulling  down  meeting-houses,  charged  that  they  with  a 
multitude,  to  the  number  of  five  hundred,  to  the  jury  un- 
known, armed  and  arrayed  in  a  warlike  manner  with  clubs 
and  staves,  and  other  arms  offensive  and  defensive,  levied 
war  against  the  queen.  No  exception  was  taken  to  the  in- 
dictment by  Damaree's  counsel;  but  on  behalf  of  Pur- 
Vol.  II.  2Q 


308  Mr.  WirVs  Speech  on 

chase  it  was  objected  that  there  ought  to  have  been  an 
overt  act  laid  of  the  treason;  because  there  being  such  a 
variety  of  facts  which  amount  to  levying  war,  if  the  par- 
ticular facts  intended  to  be  brought  forward  against  the 
prisoner  were  not  alleged,  he  could  not  know  how  to 
make  his  defence.  But  it  was  resolved  by  all  the  judges 
upon  conference  that  the  indictment  xvas  good;  and  that 
levying  war  being  an  overt  act  of  itself  no  other  overt  act 
need  be  alleged^  The  indictments  in  those  cases  are  sub- 
stantially stated  by  Foster,  213,  14,  and  the  indictments 
themselves  will  be  found  in  8  St.  Tr.  218,  19.  Now  in 
those  cases  the  acts  which  these  men  did  and  which  con- 
stituted their  crime,  was  pulling  down  meeting- houses,- 
but  in  the  indictment  there  is  not  a  word  of  meeting- 
houses, or  any  other  houses;  the  overt  act  is,  "  that  with 
a  multitude  armed  and  arrayed  in  a  warlike  manner  they 
levied  war  against  the  queen:"  and  the  court  upon  solemn 
argument,  and  after  a  conference,  decide  unanimously  that 
the  indictment  is  sufficient,  and  let  in  the  particular 
evidence  under  it.  And  as  to  the  overt  act  stating  the 
evidence  on"  which  Ave  mean  to  rely,  it  is  expressly  de- 
clared by  East,  121,  on  the  authority  of  a  variety  of  cases 
which  he  cites,  that  "  it  is  not  necessary  that  the  whole 
detail  of  the  evidence  should  be  let  out."  In  direct  con- 
firmation of  this  doctrine  are  Foster,  194,  220.  1  H.  H. 
P.  C.  122.  4  St.  Tr.  722.  Lowick's  case;  and  4  St.  Tr. 
696-7.  Rockwood's  case. 

Mr.  Wickham  does  not  say  that  this  minute  specifica- 
tion, on  which  he  insists,  has  ever  been  adjudged  neces- 
sary, but  he  infers  it  from  the  form  of  indictments  in  se- 
veral cases  which  he  has  cited.  They  do  not  support 
him.  In  the  cases  of  Balmerino,  Cromartie,  and  Kilmar- 
nock, it  is  true,  as  I  have  before  stated,  that  those  indict- 
ments lay  as  one  overt  act  the  entering  and  taking  pos- 
session of  the  town  and  castle  of  Carlisle;  but  in  the  first 


the  Trial  of  Aaron  Burr.  307 

named  case,  this  specification  is  declared  to  be  unneces- 
sary, and  it  is  said  that  the  general  overt  act  of  levying 
war  with  an  armed  multitude,  would  be  sufficient  to  let 
in  the  evidence.  These  cases,  therefore,  instead  of  sup- 
porting Mr.  Wick  ham,  disprove  the  doctrine  for  which 
he  contends.  He  still  insists,  however,  that  wherever  it 
was  intended  to  criminate  a  man  by  accessorial  acts,  the 
particular  acts  which  he  does,  must  be  set  out;  and  to 
prove  this,  he  again  cites  the  indictments  in  the  cases  of 
Hewitt  and  Mordaunt  before  mentioned,  and  of  Cornish. 
I  answer,  first,  that  no  legal  principle  can  be  safely  infer- 
red from  the  mere  forms  of  the  indictments  in  the  State 
Trials.  They  have  been  continually  shifting  and  chang- 
ing. Thus  the  case  cited  by  Mr.  Randolph  from  the  first 
State  Trials,  exhibits  an  indictment  which  is  really  a  legal 
curiosity:  the  treason  there  charged  is  compassing  the 
king's  death,  and  the  indictment  is  as  much  in  detail  as 
Pope's  history  of  the*  parish  clerk.  But  the  inference  that 
this  detail  is  necessary,  is  refuted  by  express  authority; 
1  East,  124,  5.  on  various  authorities  informs  us,  that  it 
is  sufficient  in  that  species  of  treason  (compassing  the 
king's  death),  to  lay  as  the  overt  act,  that  A  and  B  met, 
and  proposed  the  king's  death.  Besides,  what  becomes 
of  this  inference  from  an  indictment  so  much  in  detail 
(at  a  period  when,  as  Mr.  Randolph  says,  not  a  ray  of 
judicial  light  had  touched  the  English  horizon)  when  in 
modern  times  of  greater  light,  the  indictments  exhibit 
nothing  of  this  detail.  An  inference  from  these  modern 
indictments,  that  this  detail  is  not  necessary,  is  certainly 
as  fair  as  the  inference  from  the  ancient  indictments,  that 
it  is  necessary.  Thus  your  inferences  are  in  conflict,  and 
destroy  each  other.  I  refer  you  to  the  case  of  Lowick  and 
Rockwood,  first  cited  for  another  purpose,  to  show  that 
this  minute  and  circumstantial  form  of  indictment  is  ex- 
ploded. I  refer  you  also  to  the  Apprentice's  case,  2  St. 


308  Mr.  WirVs  Speech  on 

Trials,  531,  to  show  that  under  the  general  indictment 
for  levying  war,  they  go,  in  England,  into  the  circum- 
stances of  the  case  at  large.  And  secondly,  I  answer  to 
Mr.  Wickham's  cases,  that  neither  of  them  is  for  levying 
war.  Hewitt  and  Mordaunt  were  indicted  for  giving 
commissions  to  officers  of  the  exiled  king;  and  this  is 
not  charged  as  accessorial  to  any  greater  act,  as  levying 
war. — The  indictments  are  restricted  to  the  single  fact 
which  I  have  stated,  and  contemplate  no  ulterior  act. 
How  then  can  it  be  said  that  those  acts  are  of  an  accesso- 
rial nature,  when  the  sole  guilt  in  the  case  is  consum- 
mated by  the  acts  themselves  which  are  charged,  without 
borrowing  any  portion  of  that  guilt  from  any  subsequent 
occurrence?  The  other  case,  that  of  Cornish,  charges  him 
with  promising  assistance  to  the  Duke  of  Monmouth; 
and  here  his  indictment  stops:  it  does  not  look  to  any- 
thing else  (as  Monmouth's  invasion)  to  complete  the 
prisoner's  guilt.  His  guilt  is  the  profnise;  not  the  levying 
of  war.  There  is  nothing  therefore  in  these  cases  to  war- 
rant the  principle,  that  when  a  man  is  attempted  to  be 
implicated  by  accessorial  acts  in  the  treason  of  levying 
war,  those  accessorial  acts  must  be  detailed.  There  is  no- 
thing in  them  to  prove  that  the  charge  of  levying  war  with 
an  armed  multitude  is  insufficient;  on  the  contrary,  in  the 
only  case  in  which  this  point  came  directly  in  question 
before  the  court,  it  was  unanimously  and  solemnly  de- 
clared to  be  sufficient. 

Is  it  not  sufficient  in  reason  as  well  as  in  law?  Is  it  to 
be  believed  that  A.  Burr  is  not  sufficiently  apprised  by 
this  indictment,  of  the  charge  against  him,  to  prepare  for 
his  defence?  Has  he  not  prepared,  sir?  Look  at  the  fact. 
He  himself  states  that  he  has  summoned  twenty  or  thirty 
witnesses. 

Let  us  not  then,  sir,  by  these  captious  exceptions,  un- 
supported either  by  law  or  reason,  permit  ourselves  to 
be  turned  aside  from  the  inquiry  before  us.  Reason  and 


the  Trial  of  Aaron  Burr.  309 

law  concur  in   showing  that  there  is  nothing  in  Mr. 
Wickham's  second  point  to  obstruct  the  evidence. 

I  proceed,  sirs,  to  the  gentleman's  third  point,  in  which 
he  says  he  cannot  possibly  fail:  it  is  this;  "  because  if 
the  prisoner  be  a  principal  in  the  treason  at  all,  he  is  a 
principal  in  the  second  degree,  and  his  guilt  being  of  that 
kind  which  is  termed  derivative,  no  farther  parole  evi- 
dence can  be  let  in  to  charge  him,  until  we  show  a  re- 
cord of  the  conviction  of  the  principals  in  the  first  de- 
gree." By  this  position  the  gentleman  is  understood  to 
advance  in  other  terms  the  common  law  doctrine,  that 
when  a  man  is  rendered  a  principal  in  treason  by  acts 
which  would  make  him  an  accessory  in  felony,  he  can- 
not be  tried  before  the  principal  in  the  first  degree.  I  be- 
lieve this  to  be,  indeed,  the  doctrine  of  the  common  law. 
But  it  has  no  manner  of  application  to  this  case; 

1st.  Because  it  is  the  mere  creature  of  the  common 
law  of  England. 

2dly.  Because  if  the  common  law  of  England  be  our 
law,  this  position  assumes  what  is  denied,  that  the  con- 
duct of  the  prisoners  in  this  case  is  of  an  accessorial 
nature. 

1.  Because  this  position  is  the  mere  creature  of  the 
common  law.  Neither  our  constitution  nor  act  of  con- 
gress distinguish  between  principals  in  the  first  and  se- 
cond degree;  all  who  levy  war  against  the  United  States, 
whether  present  or  absent,  all  who  are  leagued  in  the 
conspiracy,  whether  on  the  spot  of  assemblage,  or  per- 
forming some  minute  and  inconsiderable  part  in  it,  a 
thousand  miles  from  the  scene  of  action,  incur  equally 
the  sentence  of  the  law;  they  are  all  equally  traitors. 
This  scale,  therefore,  which  graduates  the  guilt  of  the 
offenders,  and  establishes  the  order  of  their  respective 
trials,  if  it  ever  existed  here,  is  completely  abrogated  by 
the  highest  authorities  in  this  country: — The  convention 


310  Mr.  JVirVs  Speech  on 

which  formed  the  constitution  and  defined  treason;  con- 
gress, which  legislated  upon  that  definition,  and  the  su- 
preme judiciary  of  the  country  expounding  the  consti- 
tution and  the  law,  have  united  in  its  abrogation.  But  let 
us  for  a  moment  put  the  convention,  congress,  and  judi- 
ciary aside,  and  examine  how  the  case  will  stand:  still 
this  scale  of  moral  guilt,  which  Mr.  Wickham  has  given 
us,  is  the  creature  of  the  common  law;  but  he  himself,  in 
another  branch  of  his  argument,  has  emphatically  told 
us,  that  the  common  law  does  not  exist  in  this  country; 
has  stated  that  the  creature  presupposes  the  creator;  and 
that  where  the  creator  does  not  exist,  the  creature  cannot. 
The  common  law,  then,  being  the  creator  of  the  rule 
which  Mr.  Wickham  has  given  us,  and  that  common 
law  not  existing  in  this  country,  neither  can  the  rule, 
which  is  the  mere  creature  of  it,  exist  in  this  country. 
So  that  the  gentleman  has  himself  furnished  the  argument 
which  refutes  this  infallible  point  of  his,  on  which  he  has 
so  much  relied.  But  to  try  his  position  to  its  utmost  ex- 
tent, let  us  not  only  put  aside  the  constitution,  act  of 
congress,  and  decision  of  the  supreme  court,  but  let  us 
admit  that  the  common  law  does  exist  here;  still,  before 
the  principle  could  apply,  it  would  remain  to  be  proven 
that  the  conduct  of  the  prisoner  in  this  case  has  been 
accessorial: — or  in  other  words,  to  give  it  its  broadest 
footing,  that  his  acts  in  relation  to  this  treason  are  of  such 
a  nature  as  would  make  him  an  accessory  in  felony. 

Being  now  on  the  general  doctrine  of  principal  and  ac- 
cessory, as  they  exist  at  common  law,  I  will  follow  the 
gentleman  through  the  whole  range  of  his  remarks  on  the 
subject,  and  notice  some  which  he  advanced  under  his 
first  head.  He  said  that  accessories  are  the  mere  creature 
of  the  common  law;  hence,  said  he,  when  a  statute  is 
made  in  affirmance  of  common  law  or  in  aid  of  it,  all 
common  law  consequences  follow;  as  when  a  statute  is 


the  Trial  of  Aaron  Burr.  311 

merely  declaratory  of  a  common  law  felony,  whether  the 
statute  says  any  thing  about  accessories  or  not,  they  are 
embraced  by  it,  because  they  existed  in  the  offence  at 
common  law:  but  where  the  statute  creates  a  new  felony  ? 
not  known  at  common  law,  as  the  statute  of  Henry  VIII. 
making  piracy  a  felony,  accessories  are  not  comprehend- 
ed by  it.  Upon  this  groundwork  he  has  built  the  argu- 
ment that  as  we  have  no  common  law,  the  constitution 
and  act  of  congress  which  define  treason,  stand  alone; 
and  as  they  merely  embrace  those  who  actually  levy  war 
and  are  therefore  the  principals,  those  who  procure  or  are 
otherwise  accessory  to  it,  are  not  comprehended:  and 
hence  he  concludes  that  the  prisoner  who  merely  brought 
about  this  treason  by  procurement,  is  not  within  the  con- 
stitution and  act  of  congress.  This  argument  is  perfectly 
characteristic  of  the  ingenuity  and  subtlety  of  the  mind 
which  produced  it;  but  let  us  try  the  strength  of  this 
curiously  woven  web.  The  first  remarkable  feature  about 
it  is,  that  the  whole  of  it  is  an  emanation  of  that  common 
law,  upon  whose  non-existence  in  this  country  the  gen- 
tleman founds  his  conclusion.  His  premises  are  laid  in 
the  common  law;  and  he  derives  from  the  common  law 
of  interpreting  the  British  statutes,  a  principle  which  he 
applies  analogically  to  the  interpretation  of  our  constitu- 
tion; and  which  gives  him  this  result,  only  upon  the  pos- 
tulatiim  that  there  is  no  common  law  in  the  United  States. 
But  let  us  waive  the  objection,  and  examine  his  premises 
themselves. 

First,  is  it  true  that  a  statute  made  in  affirmance  of 
common  law  or  in  aid  of  it,  carries  along  all  common 
law  consequences?  The  book  referred  to  by  the  gentle- 
man does  not  prove  it.  10th  St.  Tr.  436,  which  he  cited 
as  authority  without  producing  it,  is  merely  the  argument 
of  Hume  Campbell,  one  of  the  counsel  in  the  cause,  and 
against  whom  that  cause  was  determined.  1  believe?  sir, 


312  Mr.  Wirt's  Speech  on 

it  is  not  usual  for  a  gentleman  citing  an  absent  author  in 
support  of  his  doctrine,  to  refer  to  the  argument  of  counsel 
as  the  opinion  of  the  court.  But  admitting  that  the  dictum 
of  Hume  Campbell  were  authority,  he  does  not  state  the 
doctrine  which  he  is  cited  to  support.  He  says  merely 
that  "  if  a  statute  speaks  of  matters  known  at  common 
law,  it  must,  as  to  that  matter,  be  construed  and  extend- 
ed according  to  the  common  law."  In  support  of  his  po- 
sition, Hume  Campbell  cites  Coke  Lit.  381.  Hobart  93. 
and  6  Mod.  148.  Of  these  three  authorities  Mr.  Wick- 
ham  selected  Hobart  as  auxiliary  to  the  State  Trials. 
Hobart  is  an  ancient  book  not  frequently  found  in  modern 
libraries:  he  is  not  in  mine;  and  from  the  abrupt  man- 
ner in  which  this  motion  has  been  started  upon  us,  and 
the  extent  of  legal  ground  which  it  covers,  1  have  not 
had  time  to  hunt  for  that  author  through  the  town:  whe- 
ther he  supports  even  Hume  Campbell,  I  am,  therefore, 
unable  to  say;  I  shall  suggest  a  reason  presently  to  ren- 
der it  probable  that  he  does  not. 

The  other  two  authorities  to  which  he  refers  do  not 
support  him.  Coke  Littleton  has  nothing  like  it:  he  gives, 
indeed,  in  the  page  referred  to,  three  rules  for  the  con- 
struction of  statutes;  as  first,  that  one  part  of  it  is  to  be 
expounded  by  another:  second,  that  the  words  of  an  act  of 
parliament  must  be  taken  in  a  lawful  and  rightful  sense; 
and  thirdly,  that  construction  must  be  made  of  a  statute  in 
suppression  of  the  mischief  and  in  advancement  of  the  re- 
medy, et  qui  haeret  in  litera  hceret  in  cortice.  This  is  all 
he  says  upon  the  subject;  and  in  all  this  we  have  nothing 
which  resembles  Mr.  Hume  Campbell's  position.  The 
other  authority  to  which  he  refers,  6  Mod.  143,  it  is  re- 
markable, is  also  the  argument  of  counsel,  sergeant  Pen- 
gelly;  this  learned  sergeant  asserts,  indeed,  a  principle 
which  I  believe  to  be  true;  but  it  is  much  more  restrict- 
ed and  materially  variant  from  that  of  Hume  Campbell, 


the  Trial  of  Aaron  Burr.  313 

and  of  course  still  more  variant  from  that  of  Mr.  Wick- 
bam:  speaking  of  the  phrase  arrest  of  judgment  which 
had  been  used  in  a  statute  of  William  the  3d,  as  being  a 
phrase  known  to  the  common  law,  he  says,  "  when  an 
act  of  parliament  makes  use  of  such  a  term  generally,  it 
shall  receive  the  same  sense  that  the  common  law  tekes 
it  in,  and  no  other;"  in  support  of  which  Pengerry  cites 
Hobart  97,  98,  the  very  author  and  page  cited  by  Hume 
Campbell  to  support  his  doctrine:  hence  I  think  it  pro- 
bable that  Hobart  stops  at  the  limits  given  by  sergeant 
Pengelly.  The  result  of  the  investigation  is,  that  Mr. 
Wickham's  broad  principle,  that  a  statute  made  in  aid  or 
affirmance  of  the  common  law  carries  with  it  all  common 
law  consequences,  is  reduced  to  this:  that  when  a  statute 
uses  a  common  law  phrase,  that  phrase  shall  receive  the 
same  sense  in  the  statute  which  it  had  at  common  law;  a 
principle  to  which  he  is  very  welcome,  but  which  will  do 
him  no  manner  of  good — so  that  down  comes  one  of  the 
pillars  which  supported  this  air-drawn  argument. 

Let  us  examine  another:  "  if  a  new  felony  be  created 
by  statute,  no  common  law  consequences  follow."  In 
support  of  this  doctrine  the  gentleman  refers  to  1  Hale's 
P.  C.  354,  5,  and  the  authority,  at  first  view,  seems  to 
countenance  his  doctrine;  it  requires,  however,  but  to  be 
more  closely  and  extensively  examined  to  perceive  that 
the  passage,  in  the  light  in  which  Mr.  WTickham  under- 
stands it,  is  not  law:  the  passage  is  this,  "  If  a  man  be 
attaint  of  piracy  before  commissioners  of  oyer  and  termi- 
ner grounded  upon  the  statute  of  28  H.  8.  chap.  15,  by 
indictment  and  verdict  of  twelve  men  according  to  the 
course  of  the  common  law,  he  forfeits  his  lands  and 
goods  by  the  statute  of  28  H.  8.  chap.  15,  but  this  works 
no  corruption  of  blood,  because  it  is  an  offence  whereof 
the  common  law  takes  no  notice,  and  though  it  be  enact- 

Vol.  II.  2  R 


314  Mr.  Wirt's  Speech  on 

ed  they  shall  suffer  and  forfeit  as  in  case  of  felony,  yet  it 
alters  not  the  offence."  In  support  of  this  Hale  cites  Co. 
P.  C.  cap.  49,  page  112: — but  he  adds,  "  vide  tamen 
contra"  Co.  Litt.  sec.  745,  p.  391.  The  passage  in  the 
latter  author  is  thus:  "  There  is  also  a  felony  punishable 
by  the  civil  law  because  it  is  done  upon  the  high  sea,  as 
piracy,*  robbery,  or  murder,  whereof  the  common  law 
did  take  no  notice,  because  it  could  not  be  tried  by  twelve 
men.  If  this  piracy  be  tried  before  the  Lord  Admiral  in 
the  court  of  the  admiralty  according  to  the  civil  law,  and 
the  delinquent  there  attainted,  yet  shall  it  work  no  cor- 
ruption of  blood  nor  forfeiture  of  his  lands;  otherwise  it 
is,  if  he  be  attainted  before  commissioners  by  force  of  the 
statute  of  28  H.  8."  Hence  it  appears  that  the  common 
law  consequence  of  attainder  depended  on  the  tribunal, 
the  form  of  trial,  and  the  law  under  which  the  pirate  was 
tried;  since  if  tried  before  commissioners  under  the  sta- 
tute, the  common  law  consequence  of  attainder  did  fol- 
low, although  the  felony  did  not  exist  at  common  law, 
but  was  newly  created  by  statute.  Hale  himself  in  page 
3^5,  qualifies  the  generality  of  his  expressions  in  the  pas- 
sage just  read.  In  the  paragraph  immediately  succeeding 
it,  he  takes  up  the  first  branch  of  the  position  just  read 
from  Coke:  "  if  a  man  be  attainted  before  the  admiral  of 
treason  or  felony  committed  upon  the  sea,  &c.  according 
io  the  course  of  the  civil  law,  yet  it  works  no  corruption 
of  blood,  &c.  the  manner  of  the  trial  being  according  to 
the   course  of  the  civil  law,"  8scc.  He  proceeds — "  If 
there  be  an  attainder  of  treason  or  felony  done  upon  the 
sea,  upon  this  statute  of2?,th  H.  8,  according  to  the  course 
of  the  common  law,  it  seems  that  the  judgment  thereupon 
works  corruption  of  blood;  because  the  commission  itself  is 
under  the  great  seal  warranted  by  act  of  parliament,  and 
the  trkdis  according  to  the  course  of  the  common  law,  &V. 


the  Trial  of  Aaron  Burr.  315 

and  with  this  agrees  Co.  Litt.  sec.  745,  page  391;  nay,  I 
think  farther,  that  if  the  indictment  of  piracy,  before  such 
commissioners,  upon  the  statute  of  28  H.  8,  be  formed 
as  an  indictment  at  common  law,  to  wit,  vi  et  armis  and 
felonice,  &c.  that  he  might  be  thereupon  attainted  and  the 
blood  corrupted."  Hence  in  the  opinion  of  Hale  himself, 
it  depended  upon  the  form  of  the  indictment  and  the  tri- 
bunal, whether  the  common  law  consequence  of  attainder, 
would  followa  conviction  for  piracy  on  this  statute.  The  re- 
sult is,  that  although  a  statute  do  create  a  felony  unknown 
to  the  common  law,  yet  common  law  consequences  may 
follow  a  conviction  upon  it;  which  is  precisely  the  re- 
verse of  the  position  contended  for  by  Mr.  Wickham. 
But  if  this  point  were  conceded  to  the  gentleman  as  re- 
lates to  attainder,  it  would  not  avail  him;  because  in  or- 
der to  extract  from  the  common  law  the  rule  which  he 
applies  analogically  to  the  construction  of  our  constitu- 
tion and  act  of  congress,  he  must  show  that  when  a  sta- 
tute creates  an  offence,  and  is  silent  as  to  accessories,  no 
accessories  are  embraced  by  the  statute.  It  will  perplex 
the  gentleman  to  show  this;  at  all  events,  the  research  ne- 
cessary to  it  would  require  more  time  than  they  have 
allowed  us,  to  discover  the  authorities  which  would  sup- 
port the  position.  The  doctrine  upon  this  subject,  so  far 
as  I  have  been  able  to  trace  it,  is  this;  that  when  an  act 
of  parliament  makes  an  offence,  and  says  nothing  of  ac- 
cessories, they  are  nevertheless  embraced;  although  it  is 
true  that  the  peculiar  wording  of  a  statute  may  prevent 
that  consequence.    I  Hale's  P.   C.    613.    "It  remains 
therefore  that  the  business  of  this  title  of  principal  and 
accessory  refers  only  to  felonies  whether  by  the  common 
law,  or  by  act  of  parliament. — As  to  felonies  by  act  of 
parliament,  regularly  if  an  act  of  parliament  enacts  an 
offence,  though  it  mentions  nothing  of  accessories  before  or 
after,  yet  virtually  and  consequentially  those  that  counsel 


316  Mr.  Wirt's  Speech  on 

or  command  the  offence,  are  accessories  before,  and  those 
that  knowingly  receive  the  offender  are  accessories  after: 
—Id.  614.  "  Though  generally  an  act  of  parliament  cre- 
ating a  felony  renders  consequentially  accessories  before 
and  after  within  the  same  penalty,  yet  the  special  penning 
of  the  act  of  parliament  in  such  cases  sometimes  varies 
the  case."  Hence  it  is,  that  is  from  the  special  penning, 
that  the  statute  of  piracy  extends  only  to  principals, 
2  Hale's  P.  C.  18.— Hale  632,  "  As  in  other  felonies  so 
in  this,  there  are  or  may  be  accessories  before  and  after; 
for  though  this  be  a  felony  by  act  of  parliament  that 
speaks  only  of  those  that  commit  the  offence,  yet  conse- 
quentially and  incidentally  accessories  before  and  after 
are  included,  and  so  in  every  new  statute  making  a  felony 
without  speaking  of  accessories  before  or  after."  The 
statute  of  5  H.  4,  cap.  4,  was  a  statute  to  prohibit  the 
multiplication  of  gold  or  silver,  that  is  alchymy,  (vide 
Wilson's  edition  of  Hale's  P.  C.  644  and  note  a.)  This 
was  an  offence  not  existing  in  any  shape  at  common  law, 
and  in  truth,  never  existing  any  where  but  in  imagination. 
Hale  in  the  page  just  referred  to,  speaking  of  this  statute, 
says,  "  And  although  the  statute  mentions  not  accessories 
'  before  or  after,  yet  this  statute  making  the  fact  felony, 
doth  consequentially  subject  accessories  before  and  after 
to  the  penalty;  though  this  be  made  a  queer e  by  Dyer  88, 
in  Eden's  case,  yet  it  seems  now  settled  according  to  the 
opinion  of  my  Lord  Coke  P.  C.  cap.  20,  that  there  may  be 
accessories  before  and  after."  Here  the  authority  is  con- 
clusive of  the  point,  that  although  a  statute  create  a  new 
felony  unknown  to  the  common  law,  and  although  it  says 
nothing  about  accessories,  they  are  nevertheless  compre- 
hended as  a  necessary  consequence  or  incident.  I  refer 
you  also,  sir,  to  page  704  of  the  same  author,  where  the 
doctrine  is  refuted;  and  where  on  the  authority  of  Sir 
Edward  Coke,  it  is  carried  so  far  as  to  state,  that  when  a 


the  Trial  of  Aaron  Burr.  3 1 7 

statute  makes  a  felony  and  expressly  comprehends  acces- 
sories before  the  fact,  being  silent  as  to  those  after  it,  yet, 
notwithstanding  the  maxim  expression  faclt  cessare  taci- 
turn, accessories  after  are  virtually  included.  From  this 
examination  two  conclusions  are  fairly  deducible. 

First,  that  when  a  statute  creates  a  new  felony  unknown 
to  the  common  law,  although  such  statute  says  nothing 
about  accessories  to  that  felony,  yet  they  exist  and  are 
punishable  under  the  act. 

Secondly.  That  accessories  are  not  the  mere  creatures 
of  the  common  law;  they  may  derive  their  existence  from 
a  statute  solely,  and  that  by  mere  implication  under  that 
statute.  What,  then,  becomes  of  the  gentleman's  nice 
tissue,  his  web  so  delicately  put  together  and  waving  and 
glittering  in  the  sun?  It  breaks  and  vanishes  at  the  touch. 

Since  then  accessories  are  not  the  creatures  merely  and 
solely  of  the  common  law,  it  makes  no  difference  whether 
the  common  law  exists  here  or  not:  accessories  may  ne- 
vertheless exist. 

Since  a  statute  creating  an  offence,  impliedly  embraces 
accessories,  not  by  the  operation  of  common  law,  but  by 
the  reason  and  nature  of  things;  an  American  statute 
may  impliedly  embrace  accessories,  since  whatever  we 
may  think  of  the  existence  of  the  common  law  in  this 
country,  no  American,  I  hope,  will  doubt  that  reason  and 
its  deductions  may  exist  here. 

But  let  us  admit  for  the  sake  of  argument  what  is  cer- 
tainly disproved:  that  accessories  are  the  mere  creatures 
of  the  common  law;  and  let  us  also  admit  that  our  con- 
stitution and  act  of  congress  do  not  embrace  accessories: 
is  it  so  very  clear  that  we  have  no  right  to  resort  to  the 
common  law  in  this  case,  to  implicate  accessorial  traitors. 
I  do  not,  myself,  think  this  inquiry  necessary:  but  it  may 
appear  so  to  you;  and  I  would  leave  no  subject  untouch- 
ed which  the  court  may  consider  as  involved  in  the  debate. 


318  Mr.  Wirt's  Speech  on 

It  would  not  be  very  bold  in  me,  sir,  to  argue  for  the 
existence  of  the  common  law  en  masse  in  this  country. 
Do  not  let  it  for  a  moment  be  understood  that  I  meant  to 
argue  for  this;  I  say  only  that  it  would  not  be  very  bold 
in  me  to  do  this;  and  I  say  so,  because  a  majority  of  the 
federal  judges,  so  far  as  their  opinions  have  been  made 
known,  have  held  that  opinion.  In  Worrel's  case,  cited 
from  Dallas,  the  court  was  divided;  judge  Chase  thought 
the  common  law  in  force,  judge  Peters  thought  otherwise. 
In  a  subsequent  case,  and  that  a  criminal  one,  I  mean  the 
case  of  Williams,  judge  Ellsworth  held  that  the  whole  of 
the  common  law  was  in  full  force,  and  even  that  unnatu- 
ral and  absurd  idea  that  a  man  is  for  ever  the  subject  of 
that  country,  in  which  it  is  the  pleasure  of  his  parents 
that  he  shall  be  born.  Mr.  Tucker  informs  us  that  judge 
Washington  was  also  of  opinion  that  the  common  law  of 
England  is  in  force  here.  These  are  all  the  opinions  of 
which  I  have  heard.  Having  thus  the  majority  of  the  fe- 
deral judges  in  favour  of  the  opinion  that  the  common  law 
of  England  is  in  force  here,  I  repeat  that  it  would  not  be 
very  bold  in  me  standing  before  a  federal  court,  to  insist 
on  the  full  operation  of  the  common  law  together  with  all 
its  consequences,  and  its  imputed  offspring,  accessories 
among  the  rest.  But  I  will  not  avail  myself  of  this  "  van- 
tage ground."  My  own  opinion  is  a  different  one.  I  take 
the  principle  with  much  greater  restriction,  and  on  this 
head  submit  these  reflections  to  the  consideration  of  the 
court. 

When  a  technical  term  is  borrowed  from  any  art  or 
science,  we  look  to  that  art  or  science  to  ascertain  its  im- 
port and  signification.  This  is  a  rule  of  reason.  It  is  the 
foundation  of  the  principle  cited  by  serjeant  Pangelly  from 
Hobart,  that  when  a  statute  adopts  a  common  law  term, 
you  take  that  term  in  its  common  law  meaning.  It  is  the 
foundation,  too,  of  a  paragraph  in  one  of  the  most  lumi= 


the  Trial  of  Aaron  Burr.  319 

nous  and  masterly  state  papers  that  ever  fell  from  the  pen 
of  man:  I  mean  the  celebrated  report  of  the  Virginia  com- 
mittee in  1799,  1800,  from  which  1  beg  leave  to  read  a 
short  extract  relative  our  present  enquiry:  "  Deeply  im- 
pressed with  these  opinions,  the  general  assembly  of  Vir- 
ginia, instruct  the  senators  and  request  the  representatives 
from  this  state  in  congress  to  use  their  best  efforts,  to  op- 
pose the  passing  of  any  law  founded  on  or  recognizing  the 
principle  lately  advanced,  that  the  common  law  of  England 
is  in  force  under  the  government  of  the  United  States, 
excepting  from  such  opposition,  such  particular  parts  of 
the  common  law  as  may  have  a  sanction  from  the  consti- 
tution, so  far  as  they  are  unnecessarily  comprehended  in 
the  technical  phrases  which  express  the  powers  delegated 
to  the  government;  and  excepting  also  such  other  parts 
thereof  as  may  be  adopted  by  congress  as  necessary  and 
proper  for  carrying  into  execution  the  power  expressly 
delegated."  Here  we  find  the  recognition  of  the  principle 
which  common  law  phrases  takes  in  the  common  law 
sense.  Upon  the  same  ground  judge  Iredell  in  the  case  of 
Fries  states  in  effect,  that  the  constitutional  terms  of  our 
definition  of  treason  being  borrowed  from  the  British 
statute,  the  framers  of  our  constitution  intended  to  adopt 
the  meaning  of  those  terms  as  expounded  in  the  parent 
country. 

Let  us  apply  these  principles.  Whence  do  we  derive 
the  particular  treason  of  levying  war?  From  the  British 
statute  immediately;  but  originally  from  the  common  law. 
Sir  Edward  Coke  in  his  third  institute  gives  us  a  com- 
mentary on  the  statute  of  Edward  III.  He  divides  it  into 
members  and  expounds  each  of  them  as  he  goes  along: — 
when  he  comes  to  the  words  of  the  statute  "  ou  si  horn 
eleva  guerre  encounter  notre  seignior  le  roy" — if  a  man 
levy  war  against  our  lord  the  king,  he  says  "  this  was 
high  treason  by  the  common  few;"— although  then  the 


320  Mr.  IVirVs  Speech  on 

words  of  our  definition  be  derived  immediately  from  the 
statute,  yet  as  the  species  of  treason,  levying  war,  is  trans- 
planted from  the  common  law,  have  we  not  a  right  to  go 
to  the  fountain  head,  and  ascertain  there  how  much 
ground  it  covered:  what  was  the  nature  of  the  treason, 
what  its  extent  and  limits?  I  do  not  speak  of  common  law 
treasons  at  large,  but  this  particular  treason  of  levying 
war:  if  we  have  a  right  to  go  to  the  common  law  ftv  this 
purpose,  we  shall  discover  that  it  comprehended  all  who 
were  leagued  in  the  general  conspiracy,  whether  they 
themselves  actually  levied  the  war  or  caused  it  to  be  levied 
by  others.  I  submit  this  idea  to  the  court  not  as  one  which 
I  have  had  time  to  weigh  and  digest;  but  as  one  which 
they  may  perhaps  find  not  unworthy  of  consideration.  But 
let  me  go  still  farther  in  my  admissions;  let  me  admit  not 
only  that  accessories  are  the  creatures  of  the  common  law, 
but  also  that  the  common  law  is  not  in  force  in  this  coun- 
try, and  further  that  our  statute  does  not  comprehend  ac- 
cessories: still  before  the  prisoner  can  avail  himself  of  these 
admissions,  it  must  be  shown  that  he  is  an  accessory:  or 
in  other  words,  that  the  part  which  he  bare  in  this  treason 
is  such  as  would  have  made  him  an  accessory  in  felony. 
Gentlemen  say  that  all  are  accessories  who  are  not  actu- 
ally present  at  the  offence:  We  on  the  contrary  contend 
that  even  in  inferior  felonies  a  man  may  be  a  principal 
without  actual  presence.  Let  us  examine  this  question. 
The  law  takes  a  distinction  between  actual  and  legal  pre- 
sence. A  man  may  be  legally  present,  although  actually 
absent;  and,  even  in  felony,  legal  presence  makes  a  man 
as  much  a  principal  as  actual  presence.  I  beg  leave  to  in- 
troduce a  series  of  cases  which  go  to  unfold  and  establish 
this  distinction;  and  I  will  preface  them  with  this  remark, 
that  you  will  find,  in  the  progress  of  these  cases,  the  sphere 
of  legal  presence  perpetually  extending  itself,  in  propor- 
tion to  the  nature  of  the  crime  and  the  extent  of  theatre 


the  Trial  of  Aaron  Burr.  321 

which  it  requires  for  its  perpetration.  I  proceed  to  lay  the 
cases  before  you.  1  Hale's  P.  C.  439;   "  if  divers  persons 
come  to  make  an  affray,  &c.  and  are  of  the  same  party  and 
come  into  the  same  house,  but  are  in  several  rooms  of  the 
same  house,  and  one  be  killed  in  one  of  the  rooms,  those 
that  are  of  that  party  and  that  come  for  that  purpose, 
though  in  the  other  rooms  of  the  same  house,  shall  be  said 
to  be  present."  Here  the  house  is  the  theatre,  and  it  is  re- 
quired that  those  who  are  to  be  implicated  as  principals 
shall  be  in  the  other  rooms  of  the  same  house.  The  next 
is  the  case  of  the  Lord  Dacre,  stated  in  the  same  page:  it 
is  this:  "  The  Lord  Dacre  and  divers  others  came  to  steal 
deer  in  the  park  of  one  Pelham;  Ray  den  one  of  the  com- 
pany killed  the  keeper  in  the  park,  the  Lord  Dacre  and 
the  rest  of  the  company  being  in  other  parts  of  the  park, 
it  was  ruled  that  it  was  murder  in  them  all,  and  they  died 
for  it."  Here  as  the  park  was  the  theatre  of  the  meditated 
crime  the  scale  of  proximity  is  enlarged,  and  it  was  enough 
that  the  Lord  Dacre  and  his  associates  were  in  the  same 
park  to  implicate  them  in  the  guilt.  The  next  is  Pudsey's 
case  which  is  thus  stated,  1  Hale's  P.  C.  534:  Pudsey 
and  two  others,  viz.  A  and  B,  assault  C  to  rob  him  in  the 
highway,  but  C  escapes  by  flight,  and  as  they  were  as- 
saulting him,  A  rides  from  Pudsey  and  B,  and  assaults  D, 
out  of  the  view  of  Pudsey  and  B,  and  takes  from  him  a 
dagger  by  robbery,  and  came  back  to  Pudsey  and  B,  and 
for  this  Pudsey  was  indicted  and  convicted  of  robbery; 
though  he  assented  not  to  the  robbery  of  Z),  neither  was 
it  done  in  his  view;  because  they  were  all  there  assembled 
to  commit  a  robbery,  and  this  taking  of  the  dagger  was 
in  the  mean  time."  Here  as  the  highway  and  the  whole 
forest  were  the  scene  of  action,  a  still  less  degree  of  proxi- 
mity was  required  than  in  either  of  the  preceding  cases, 
and  indeed  no  limit  of  proximity  is  stated  at  all.  But  this 
case  of  Pudsey  is  irresistibly  strong  in  another  point  of 
Vol.  II.  2S 


322  Mr.  Wirt's  Speech  on 

view,  and  contains  a  principle  which  covers  the  case  at 
bar  completely;  that  principle  is  this:  Pudsey  and  his  col- 
leagues were  leagued  for  the  general  purpose  of  robbing; 
they  went  out  upon  this  purpose;  and  although  Pudsey 
was  not  only  absent  at  the  particular  act  of  robbing  D, 
but  gave  no  assctit  to  that  particular  act,  yet  he  was  in- 
voiv  d  in  the  guilt  of  it  and  suffered  accordingly.  The 
sum.-  author,  page  537,  contains  a  case  which  is,  if  pos- 
sible, still  stronger  to  the  sam<  purpose:  it  is  the  case  of 
two  men  who  go  out  for  the  purpose  of  robbing  on  the 
highway  or  committing  a  burglary;  although  one  only 
commit  the  offence,  and  the  other,  so  far  from  being  pre- 
sent is  actually  engaged  in  the  perpetration  of  a  different 
crime  at  a  different  place,  yet  this  other  is  equally  involved 
in  the  offence  committed  by  the  first.  Hence  it  is  not  ac- 
tual presence  which  makes  a  principal  in  felony;  it  is 
merely  their  going  forth  leagued  in  the  same  general  de- 
sign, and  the  willingness  to  co-operate  for  effecting  the 
common  purpose.  Foster  349,  50,  thus  treats  the  subject: 
"  When  the  law  requireth  the  presence  of  the  accomplice 
at  the  perpetration  of  the  fact  in  order  to  render  him  a 
principal,  it  doth  not  require  a  strict,  actual,  immediate 
presence,  such  a  presence  as  would  make  him  an  eye  or  ear 
witness  of  what  passeth.  Several  persons  set  out  together 
upon  one  common  design,  be  it  murder  or  other  felony, 
or  for  any  other  purpose  unlawful  in  itself,  and  each  taketh 
the  post  assigned  him:  some  to  commit  the  fact,  others  to 
watch  at  proper  distances  and  stations  to  prevent  a  sur- 
prise, or  to  favour,  if  need  be,  the  escape  of  those  who  are 
more  immediately  engaged:  They  are  all,  provided  the  fact 
be  committed,  in  the  eye  of  the  law  present  at  it;  for  it 
was  made  a  common  cause  with  them,  each  man  operated 
in  his  station  towards  the  same  common  end;  and  the  part 
each  man  took,  tended  to  give  countenance,  encouragement, 
and  protection  to  the  whole  gang,  and  to  ensure  the  success 


the  Trial  of  Aaron  Burr.  323 

of  their  common  enterprise."  The  reason  of  the  law  is  the 
soul  of  the  law.  What  is  the  reason  then  which  according 
to  Foster,  constitutes  this  legal  presence?  It  is,  that  tne 
cause  is  a  common  cause;  that  each  man  operates  in  his 
station  towards  the  same  common  end;  that  the  part  each 
man  takes,  tends  to  give  countenance,  encouragement, 
and  protection  to  the  whole  gang,  and  to  ensure  th^  suc- 
cess of  their  common  enterprise.  Whosoever,  in  any 
crime,  performs  a  part  within  this  description,  is  legally 
present  and  a  principal  in  that  crime.  Foster  proceeds;  "  I 
will  not  here  multiply  cases  upon  the  head  of  constructive 
presence.  This  may  be  sufficient  by  way  of  illustration. 
Others  founded  in  the  same  principl  of  mutual  concert^ 
aid  and  protection,  will  iall  in,  in  their  proper  places."  In 
page  353,  4,  he  keeps  his  promise.  "  A  general  resolution 
agamst  all  opposers,  whether  such  resolution  appeareth 
upon  the  evidence  to  have  been  actually  and  explicitly 
entered  into,  or  may  be  reasonably  collected  from  their 
number,  arms,  or  behaviour  at  or  before  the  scene  of  ac- 
tion; such  resolutions  so  proved  have  always  been  con- 
sidered as  strong  ingredients  in  cases  of  this  kind.  And  in 
cases  of  homicide  committed  in  consequence  of  them, 
every  person  present  in  the  sense  of  the  law,  when  the 
homicide  hath  been  committed,  hath  been  involved  in  the 
guilt  of  him  that  gave  the  mortal  blow.  The  case  of  Lord 
Dacres  mentioned  by  Hale,  and  of  Pudsey  reported  by 
Crompton  and  cited  by  Hale,  turned  upon  this  point.  The 
offences  they  respectively  stood  charged  with  as  principals, 
were  committed  far  out  of  their  sight  and  hearing;  and  yet 
both  were  holden  to  be  present.  It  was  sufficient  that  at 
the  instant  the  facts  were  committed,  they  were  of  the 
same  party  and  upon  the  same  pursuit,  and  under  the 
same  engagement  and  expectation  of  mutual  defence  and 
support  with  those  who  did  the  facts." 


324  Mr.  Wirt's  Speech  on 

Let  us  apply  the  reasoning  and  principles  of  those  cases 
to  the  case  at  bar.  In  order  to  do  this  with  propriety,  we 
must  consider  the  nature  of  the  crime  charged  upon  the 
prisoner:  the  theatre  requisite  for  its  perpetration  and  the 
various  parts  to  be  performed  in  promotion  of  the  general 
purpose.  The  charge  in  the  indictment  is  treason  in  levy- 
ing war  against  the  United  States;  the  objects  imputed  to 
the  prisoner  are  the  seizure  of  Orleans  and  the  separation 
of  the  states.  We  shall  make  a  mistaken  application  of  the 
doctrines  just  investigated,  if  we  apply  them  to  the  overt 
act  on  Biannerhasset's  island.   That  assemblage  was  not 
the  object,  the  end,  the  catastrophe  and  consummation  of 
the  treason;  it  was  a  mere  transient  and  incidental  effect  of 
it.  At  the  time  then  of  this  assemblage  we  are  to  consider 
the  prisoner's  local  position,  not  in  reference  to  the  assem- 
blage, but  to  the  general  and  grand  object  of  the  treason; 
not  in  reference   to  the  island,  but  to  the  great  theatre 
which  the  treason  required  and  on  which  it  was  acting, 
from  New  York  to  Orleans.  The  gentlemen  on  the  other 
side  will  not  complain  of  this  as  a  new  idea.  Mr.  Wickham 
himself  urged  it  and  reiterated  it  for  a  different  purpose, 
that  the  overt  act  was  not  the  treason  but  merely  evidence 
of  it.   When  then,  in  the  language  of  the  cases  just  read, 
we  enquire  whether  the  prisoner  and  the  men  on  the  island 
were  of  the  same  party  and  upon  the  same  pursuit,  the 
question  relates  not  to  the  island,  which  was  certainly  not 
their  pursuit,  but  to  the  great  and  splendid  purpose  of 
seizing  Orleans,  and  rending  the  union  forcibly  asunder; 
and  in  this  light  they  were  of  the  same  party  and  uvon  the 
same  pursuit;  in  this  light  they  were  "  under  the  same  en- 
gagement and  expectation  of  mutual  defence  and  support; 
it  was  a  common  cause  with  them,  each  man  operated  in 
his  station,  at  one  and  the  same  instant,  towards  the  same 
common  end,  and  the  part  each  man  took,  tended  to  give 
countenance,  encouragement  and  protection  to  the  whole 


the  Trial  of  Aaron  Burr.  325 

gang,  and  to  ensure  the  success  of  the  common  enterprise:^ 
so  that  within  every  reason  and  principle  assigned  tor  the 
constitution  of  legal  presence,  they  were  all  equally  pre- 
sent. What  though  the  prisoner  gave  no  express  assent 
to  the  particular  meeting  on  the  island;  neither  did  Pudsey 
in  the  case  cited,  assent  to  the  particular  robbery  of  D  by 
A;  but  the  purpose  of  Pudsey  and  A  was  the  same  com- 
mon purpose  which  involved  them  in  the  same  common 
guilt.   So  the  purpose  of  the  prisoner  and  the  men  upon 
the  island  was  a  common  purpose,  and  therefore   their 
guilt  is  the  same.  The  part,  therefore,  which  the  prisoner 
has  in  this  transaction,  is  such  an  one,  as  in  the  case  of 
felony  would  make  him  a  principal  and  not  an  accessory 
as  the  gentlemen  contend. 

The  result  is  in  perfect  harmony  with  the  decision  of 
the  supreme  court  in  the  case  of  Bollman  and  Swartvvout. 
Then  we  have  seen  that  remoteness  from  the  scene  of  the 
treason  makes  no  odds:  it  is  the  being  leagued  in  the 
same  common  cause,  and  co-operating  towards  the, same 
general  purpose  which  gives  to  each  man  a  legal  presence 
although  thousands  of  miles  off,  and  makes  him  as  much 
a  principal  as  those  who  are  actually  present. 

Having  ascertained  that  the  prisoner  can  in  no  view  of 
the  law  be  considered  as  an  accessory  in  this  case,  let  us 
enquire  whether  he  can  be  so  considered  in  reason. 

A  plain  man  who  knew  nothing  of  the  curious  trans- 
mutations which  the  wit  of  man  can  work,  would  be 
very  apt  to  wonder  by  what  kind  of  legerdemain  Aaron 
Burr  had  contrived  to  shuffle  himself  down  to  the  bottom 
of  the  pack  as  an  accessory,  and  turned  up  poor  Blanner- 
hasset  as  a  principal  in  this  treason.  It  is  an  honour,  I  dare 
say,  for  which  Mr.  Blannerhasset  is  by  no  means  anxious; 
one  which  he  has  never  disputed  with  Col.  Burr,  and 
which  I  am  persuaded  he  would  be  as  little  inclined  to 
dispute  on  this  occasion  as  on  any  other.  Since,  however, 


326  Mr.  WirVs  Speech  on 

the  modesty  of  Col.  Burr  declines  the  first  rank  and  seems 
disposed  to  force  Mr.  Blannerhasset  into  it  in  spite  of  his 
blushes,  let  us  compare  the  cases  of  the  two  men  and  set- 
tle the  question  of  precedence  between  them.  It  may  save 
a  good  deal  of  troublesome  ceremony  hereafter. 

In  making  this  comparison,  sir,  I  shall  speak  of  the  two 
men  and  of  the  part  they  bore  as  I  believe  it  to  exist  and 
to  be  substantially  capable  of  proof:  although  the  court 
has  already  told  us  that  as  this  is  a  motion  to  exclude  all 
evidence,  generally,  we  have  a  right,  in  resisting  it,  to 
suppose  the  evidence  which  is  behind,  strong  enough  to 
prove  any  thing  and  every  thing  compatible  with  the  fact 
of  Burr's  absence  from  the  island.  If  it  will  be  more 
agreeable  to  the  feelings  of  the  prisoner  to  consider  the 
parallel  which  I  am  about  to  run,  or  rather  the  contrast 
which  I  am  about  to  exhibit,  as  a  fiction,  he  is  at  liberty 
to  do  so;  I  believe  it  to  be  a  fact. 

Who  then  is  Aaron  Burr,  and  what  the  part  which  he 
has  borne  in  this  transaction?  He  is  its  author;  its  pro- 
jector; its  active  executor.  Bold,  ardent,  restless  and  as- 
piring, his  brain  conceived  it;  his  hand  brought  it  into 
•  action.  Beginning  his  operations  in  New  York,  he  associ- 
ates with  him,  men  whose  wealth  is  to  supply  the  neces- 
sary funds.  Possessed  of  the  main  spring,  his  personal 
labour  contrives  all  the  machinery.  Pervading  the  conti- 
nent from  New  York  to  New  Orleans,  he  draws  into  his 
plan,  by  every  allurement  which  he  can  contrive,  men  of 
all  ranks  and  all  descriptions.  To  youthful  ardor  he  pre- 
sents danger  and  glory;  to  ambition,  rank  and  titles  and 
honours;  to  avarice,  the  mines  of  Mexico.  To  each  person 
whom  he  addresses,  he  presents  the  object  adapted  to  his 
taste;  his  recruiting  officers  are  appointed;  men  are  engag- 
ed throughout  the  continent;  civil  life  is  indeed  quiet  upon 
its  surface;  but  in  its  bosom  this  man  has  contrived  to 
deposit  the  materials  with  which  the  slightest  touch  of  his 


the  Trial  of  Aaron  Burr.  327 

match  produces  an  explosion  to  shake  the  continent.  All 
this  his  restless  ambition  has  contrived;  and  in  the  autumn 
of  1806  he  goes  forth  for  the  last  time  to  apply  this  match. 
On  this  excursion  he  meets  with  Biannerhasset. 

Who  is  Biannerhasset?  A  native  of  Ireland,  a  man  of 
letters,  who  fled  from  the  storms  of  his  own  country  to 
find  quiet  in  ours.  His  history  shows  that  war  is  not  the 
natural  element  of  his  mind;  if  it  had  been,  he  would  never 
have  exchanged  Ireland  for  America.  So  far  is  an  army 
from  furnishing  the  society  natural  and  proper  to  Mr. 
Biannerhasset^  character,  that  on  his  arrival  in  America, 
he  retired  even  from  the  population  of  the  Atlantic  states, 
and  sought  quiet  and  solitude  in  the  bosom  of  our  west- 
ern forests.  But  he  carried  with  him  taste  and  science  and 
wealth;  and  "  lo,  the  desert  smiled."  Possessing  himself 
of  a  beautiful  island  in  the  Ohio,  he  rears  upon  it  a  palace 
and  decorates  it  with  every  romantic  embellishment  of 
fancy.  A  shrubbery  that  Shenstone  might  have  envied 
blooms  around  liim;  music,  that  might  have  charmed  . 
Calypso  and  her  nymphs,  is  his;  an  extensive  library 
spreads  its  treasures  before  him;  a  philosophical  apparatus  , 
offers  to  him  all  the  secrets  and  mysteries  of  nature;  peace, 
tranquillity  and  innocence  shed  their  mingled  delights 
around  him;  and  to  crown  the  enchantment  of  the  scene, 
a  wife,  who  is  said  to  be  lovely  even  beyond  her  sex  and 
graced  with  every  accomplishment  that  can  render  it  ir- 
resistible, had  blessed  him  with  her  love,  and  made  him 
the  father  of  her  children.  The  evidence  would  convince 
you,  sir,  that  this  is  only  a  faint  picture  of  the  real  life.  In 
the  midst  of  all  this  peace,  this  innocence,  and  this  tranquil- 
lity, this  feast  of  the  mind,  this  pure  banquet  of  the  heart-— 
the  destroyer  comes;  he  comes  to  turn  this  paradise  into  a 
hell — yet  the  flowers  do  not  wither  at  his  approach  and  no 
monitory  shuddering  through  the  bosom  of  their  unfortu- 
nate possessor  warns  him  of  the  ruin  that  is  coming  upon 


328  Mr.  Wirt's  Speech  on 

him.  A  stranger  presents  himself.  Introduced  to  their 
civilities  by  the  high  rank  which  he  had  lately  held  in  his 
country,  he  soon  finds  his  way  to  their  hearts  by  the  dig- 
nity and  elegance  of  his  demeanor,  the  light  and  beauty 
of  his  conversation,  and  the  seductive  and  fascinating 
power  of  his  address.  The  conquest  was  not  a  difficult  one. 
Innocence  is  ever  simple  and  credulous;  conscious  of  no 
designs  itself,  it  suspects  none  in  others;  it  wears  no 
guards  before  its  breast;  everjr  door  and  portal  and  avenue 
of  the  heart  is  thrown  open,  and  all  who  choose  it  enter. 
Such  was  the  state  of  Eden,  when  the  serpent  entered  its 
bovvers.  The  prisoner  in  a  more  engaging  form,  winding 
himself  into  the  open  and  unpractised  heart  of  the  unfor- 
tunate Blannerhasset,  found  but  little  difficulty  in  changing 
the  native  character  of  that  heart  and  the  objects  of  its 
affection.  By  degrees  he  infuses  into  it  the  poison  of  his 
own  ambition;  he  breathes  into  it  the  fire  of  his  own  cou- 
rage; a  daring  and  a  desperate  thirst  for  glory;  an  ardour 
panting  for  all  the  storms  and  bustle  and  hurricane  of  life. 
In  a  short  time  the  whole  man  is  changed,  and  every 
object  of  his  former  delight  relinquished.  No  more  he 
enjoys  the  tranquil  scene:  it  has  become  flat  and  insipid 
to  his  taste:  his  books  are  abandoned;  his  retort  and  cru- 
cible are  thrown  aside;  his  shrubbery  blooms  and  breathes 
its  fragrance  upon  the  air  in  vain;  he  likes  it  not:  his 
ear  no  longer  drinks  the  rich  melody  of  music;  it  longs 
for  the  trumpet's  clangor  and  the  cannon's  roar:  even  the 
prattle  of  his  babes  once  so  sweet  no  longer  affects  him; 
and  the  angel  smile  of  his  wife,  which  hitherto  touched 
his  bosom  with  ecstacy  so  unspeakable,  is  now  unfelt 
and  unseen.  Greater  objects  have  taken  possession  of 
his  soul — his  imagination  has  been  dazzled  by  visions 
of  diadems,  and  stars  and  garters  and  titles  of  nobility:  he 
has  been  taught  to  burn  with  restless  emulation  at  the 
names  of  Cromwell,  Ccesar  and  Bonaparte.  His  enchanted 
island  is  destined  soon  to  relapse  into  a  desert;  and  in  a 


the  Trial  of  Aaron  Burr.  329 

few  months  we  find  the  tender  and  beautiful  partner  of  his 
bosom,  whom  he  lately  "permitted  not  the  winds  of'5' 
summer  "  to  visit  too  roughly,"  we  find  her  shivering,  at 
midnight,  on  the  winter  banks  of  the  Ohio,  and  mingling 
her  tears  with  the  torrents  that  froze  as  they  fell.  Yet  this 
unfortunate  man,  thus  deluded  from  his  interest  and  his 
happiness — thus  seduced  from  the  paths  of  innocence  and 
peace — thus  confounded  in  the  toils  which  were  deliberately 
spread  for  him,  and  overwhelmed  by  the  mastering  spirit 
and  genius  of  janother;  this  man,  thus  ruined  and  undone, 
and  made  to  play  a  subordinate  part  in  this  grand  drama 
of  guilt  and  treason;  this  man  is  to  be  called  the  principal 
offender;  while  he,  by  whom  he  was  thus  plunged  and 
steeped  in  misery,  is  comparatively  innocent — a  mere  ac- 
cessory. Sir,  neither  the  human  heart  nor  the  human  un- 
derstanding will  bear  a  perversion  so  monstrous  and  ab- 
surd; so  shocking  to  the  soul;  so  revolting  to  reason.  O! 
no,  sir.  There  is  no  man  who  knows  any  thing  of  this 
affair  who  does  not  know,  that,  to  every  body  concerned 
in  it,  Aaron  Burr  was  as  the  sun  to  the  planets  which  sur- 
round him;  he  bound  them  in  their  respective  orbits,  and 
gave  them  their  light,  their  heat  and  their  motion.  Let 
him  not  then  shrink  from  the  high  destination  which  he 
has  courted;  and  having  already  ruined  Blannerhasset  in 
fortune,  character  and  happiness  for  ever,  attempt  to  finish 
the  tragedy  by  thrusting  that  ill-fated  man  between  him- 
self  and  punishment. 

Upon  the  whole,  sir,  reason  declares  Aaron  Burr  the 
principal  in  this  crime,  and  herein  confirms  the  sentence 
of  the  law. 

Before  I  conclude  this  point,  I  beg  leave  to  notice  some 
remarks  of  Mr.  Wickham's  on  the  act  of  congress,  touch- 
ing  crimes  against  the  United  States,  and  which  I  omitted 
in  the  proper  place.  He  says  that  congress  were  aware  that 
the  common  law  was  not  in  force  here,  and  consequQntlr 

Vol.  II,  2  T 


3  SO  Mr.  TFirVs  Speech  on 

that  accessories,  who  are  the  creatures  of  the  common  law, 
would  not  be  embraced  by  an  act  creating  a  felony  in  ge- 
neral terms:  he  infers  this  from  their  having  prescribed 
the  punishment  of  accessories  in  the  case  of  piracy,  and 
those  who  rescue  after  conviction  of  treason.  1  will  make 
this  remark  upon  the  act  of  congress;  whenever  it  men- 
tions accessories  to  any  crime,  it  is  for  the  purpose  of  dis- 
tinguishing between  the  guilt  and  consequently  the  punish- 
ment of  accessories  before  and  after  the  fact.  I  mentioned 
before,  the  line  which  reason  had  drawn  between  them. 
Congress  has  observed  this  line.  Accessories  before  the 
fact  in  piracy,  are  punished  with  death:  those  after  it  by 
fine  and  imprisonment.  The  23d  sec.  of  that  act  is  con- 
fined merely  to  the  case  of  rescues  after  acquittal,  and  its 
objects  is  simply  to  keep  the  course  of  justice  clear.  Con- 
gress knew  that  in  treason,  all  were  principals  from  the 
nature  of  the  crime,  and  that  it  was  therefore  unnecessary 
to  implicate  them  in  detail  by  a  special  act. 

From  what  has  been  said  I  trust  it  is  clear  both  in  law 
and  reason,  that  Aaron  Burr  did  not  derive  his  guilt  from 
the  men  on  the  island,  but  imparted  his  own  guilt  to  them; 
that  he  is  not  an  accessory  in  the  crime,  but  a  principal; 
and  therefore  that  there  is  nothing  in  the  objection  which 
demands  a  record  of  their  conviction  before  we  shall  go 
on  with  our  proof  against  him. 

But  admitting,  what  is  scarcely  possible,  that  the  court 
shall  think  otherwise,  and  shall  deem  Aaron  Burr  an  ac- 
cessorial offender  in  the  treason,  can  you  for  this,  shut  out 
the  evidence  from  the  jury?  The  indictment  does  not 
charge  Aaron  Burr  as  an  accessory;  but  as  a  principal. 
Whether  he  is  a  principal  or  not  is  the  question  of  fact 
which  the  jury  is  sworn  to  decide.  Will  you,  because  of 
your  impressions  of  this  fact,  from  a  partial  view  of  the 
evidence,  compel  trum  to  decide  also  upon  that  partial 
view?  If  you  do,  do  you  not  thereby  divest  the  jury  of 


the  Trial  of  'Aaron  Biftr.  331 

their  proper  and  peculiar  functions?  The  province  of  the 
jury  must  not  be  invaded,  sir;  the  invasion  is  big  with 
danger  and  terror.  I  trust  that  you  will  see  this  subject  in 
the  awful  light  in  which  it  really  stands,  and  that  you  will 
suffer  the  trial  to  take  its  natural  course. 

The  fourth  and  last  objection  to  the  admission  of  our 
evidence  is  this:  "  That  no  evidence  is  relevant  to  con- 
nect the  prisoner  with  others,  and  thus  to  make  him  a 
traitor  by  relation,  until  we  show  an  act  of  treason  in 
those  others;  and  the  assemblage  on  the  island  was  not  an 
act  of  treason." 

The  question  which  the  court  is  here  called  on  to  de- 
cide, is,  whether  the  assemblage  on  Blannerhasset's  island 
was  a  levying  of  war.  The  gentlemen  who  hold  the  nega- 
tive of  this  position  must  admit  that  the  intention  of  that 
assemblage  was  a  treasonable  one;  or  else  we  cannot  be 
debarred  from  proving  it.  They  must  admit  that  the  in- 
dividuals who  composed  that  assemblage  were  enlisted 
by  Aaron  Burr,  or  by  his  subaltern  officers;  that  they 
had  marched  by  individuals  to  the  mouth  of  Beaver,  a 
place  of  partial  rendezvous:  that  when  collected  there, 
they  proceeded  to  Blannerhasset's  island,  another  place 
of  rendezvous;  where  they  were  to  receive  an  accession 
of  boats,  men,  provisions,  arms,  and  ammunition,  under 
the  command  of  Blannerhasset  himself:  that  from  the 
island  they  proceeded  to  the  mouth  of  Cumberland,  a 
place  of  general  rendezvous  for  the  expected  forces  from 
the  east,  and  from  the  states  of  Virginia,  Kentucky,  Ohio 
and  Tennessee;  that  at  the  mouth  of  Cumberland  they 
took  in  their  commander  in  chief,  the  prisoner  at  the  bar, 
with  a  considerable  addition  of  men  and  arms,  and  pro- 
ceeded to  Baton  Rouge,  attempting  the  seduction  of  the 
officers  and  men  at  the  several  forts  and  garrisons  of  the 
United  States,  as  they  passed;  which  forts  and  garrisons 
were  too  weak  to  have  resisted  their  passage  with  effect; 


332  Mr.  WirVs  Speech  on 

that  expecting  the  co-operation  of  the  United  States' 
troops,  the  project  was  to  seize  upon  New  Orleans,  toge* 
ther  with  its  bank,  shipping,  military  stores,  &c.  to  plant 
the  standard  of  treason  and  a  separate  empire  in  that  city, 
and  to  rend  from  the  nation  all  that  portion  of  territory 
which  lies  west  of  the  Allegany.  All  this  they  must  ad- 
mit, for  this  and  more  we  are  prepared  to  prove.  The 
question  then  is,  whether,  all  these  things  admitted,  the 
assemblage  on  the  island  was  an  overt  act  of  levying  war. 

Here  we  are  brought  back  to  the  constitution  and  act 
of  congress;  and  the  inquiry  is,  what  is  levying  war? 
Gentlemen  on  the  other  side  speaking  on  this  subject, 
have  very  artfully  dropped  the  word  levying  altogether. 
"  Show  us  your  open  act  of  war"  they  exclaim;  "  hard 
knocks"  says  Mr.  Lee,  "  are  things  we  can  all  feel  and 
understand;  where  are  the  hard  knocks?"  "  Where  was 
this  bloody  battle,  this  bloody  war?"  cries  Mr.  Martin. 
No  where,  gentlemen;  there  was  no  bloody  battle,  there 
was  no  bloody  war.  The  energy  of  a  despised  and  tra- 
duced government  prevented  that  tragical  consequence. 
In  reply  to  all  this  blustering  and  clamour  for  blood  and 
havoc,  let  me  ask  calmly  and  temperately,  does  our  con- 
stitution and  act  of  congress  require  them?  Can  treason 
be  committed  by  nothing  short  of  actual  battle?  Mr. 
Wickham,  shrinking  from  a  position  so  bold  and  indefen- 
sible, has  said  that  if  there  be  not  actual  force,  there  must 
be  at  least  potential  force— such  as  terror  and  intimida- 
tion struck  by  the  treasonable  assemblage.  We  will  exa- 
mine this  idea  presently.  Let  us  at  this  moment  recur  to 
the  constitutional  definition  of  treason,  or  to  so  much 
thereof  as  relates  to  this  case.  "  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against 
them;"  not  in  making  war;  but  in  levying  it.  The  whole 
question,  then,  turns  on  the  meaning  of  that  word,  levying. 

We  know  that  our's  is  a  motley  language;  variegated 


the  Trial  of  Aaron  Burr.  333 

and  enriched  by  the  plunder  of  many  foreign  stores. 
When  we  derive  a  word  from  the  Latin,  the  Greek,  or 
any  other  foreign  language,  living  or  dead,  philologists 
have  always  thought  it  most  safe  and  correct  to  go  to  the 
original  language  for  the  purpose  of  ascertaining  the  pre- 
cise meaning  of  such  word.  Levy,  we  are  told  by  all  our 
lexicographers,  is  a  word  of  French  origin:  It  is  proper 
therefore  that  we  should  turn  to  the  dictionaries  of  that 
language  to  discover  its  true  and  real  meaning;  and  I  be- 
lieve we  shall  not  find  that  when  applied  to  war,  it  ever 
means  to  fight*  as  gentlemen  on  the  other  side  would  have 
us  to  believe.  Boyer's  Dictionary  is  before  me,  sir;  and 
I  am  the  more  encouraged  to  appeal  to  him,  because  in 
the  case  of  Bollman  and  Swartwout,  your  honour,  in  es- 
timating the  import  of  this  very  word,  thought  it  hot 
improper  to  refer  to  the  authority  of  Dr.  Johnson. 
"  Lever"  the  verb  active,  signifies,  according  to  Boyer, 
"  to  lift,  heave,  hold  or  raise  up."  Under  the  verb  he  has 
no  phrase  applicable  to  our  purpose;  but  under  the  sub- 
stantive, levee,  he  has  several;  I  will  give  you  them  all. 

Levee  d'un  siege;  the  raising  of  a  siege.  Levee  des 
fruits;  gathering  of  fruits,  crop  or  harvest. 

La  levee  du  parlement  Brittannique;  the  raising  or  re- 
cess of  the  British  parliament:  Levee  (collete  de  deniers) 
a  levying,  raising,  or  gathering:  Levee  de  gens  de  guerre, 
levying,  levy,  or  raising  of  soldiers:  Faire  des  levees  de 
soldats;  to  levy  or  raise  soldiers:  so  that  when  applied  to 
fruits  or  taxes,  it  means  gathering  as  well  as  raising;  when 
applied  to  soldiers  it  means  raising  only;  not  gathering, 
assembling,  or  bringing  them  together  even;  but  merely 
raising.  Johnson  takes  both  these  meanings  as  you  men- 
tioned, in  the  case  of  Bollman  and  Swartwout;  but  in  the 
original  language  we  see  that  levying,  when  applied  to 
soldiers,  means  simply  the  raising  them,  without  any 


334  Mr.  Wirt's  Speech  on      % 

thing  farther:  in  military  matters,  levy  and   ktising,  if 
Boyer  may  be  trusted,  are  synonymous. 

But  to  ascertain  still  more  satisfactorily  the  meaning 
of  this  word  levy,  let  us  look  to  the  source  from  which 
we  have  borrowed  the  whole  definition  of  treason:  the 
statute  of  the  25  E.  3.  That  statute  is  in  Norman 
French,  and  describing  the  treason  of  levying  war,  uses 
these  words,  "  si  home  leve  de guerre  contre  noster  seigneur 
le  roy  en  son  royalme."  In  a  subsequent  reign,  I  mean 
the  factious  and  turbulent  reign  of  Richard  II.  when 
the  statute  of  Edward,  although  unrepealed,  was  forgot- 
ten, lost  and  buried  under  the  billows  of  party  rage  and 
vengeance,  it  became  at  length  necessary  for  parliament 
to  interfere  and  break  to  pieces  the  engine  of  constructive 
treason;  and  in  the  21st  year  of  Richard  II.  a  statute 
was  passed  which  may  be  considered  as  a  parliamentary 
construction  of  that  of  Edward  III.  In  that  statute  the 
treason  of  levying  war  is  thus  explained,  "  celuy  que 
levy  le  people  and  chivache  en  counter  le  roy  a  fair  guerre 
deins  son  realme"  Here  the  French  verb,  leve,  is  the  same 
as  that  used  in  the  statute  of  Ed.  with  an  unimportant 
orthographic  variation;  and  here,  it  is  clearly  contradis- 
tinguished from  the  actual  war: — the  levy  is  of  men  and 
horses,  for  the  purpose  of  making  war;  and  the  levy 
would  have  been  complete,  although  the  purpose  had 
never  been  executed:  I  consider,  therefore,  the  statute  of 
Richard  as  not  only  adding  another  authority  to  that  of 
Boyer  to  prove  that  the  extent  of  the  French  verb  leve, 
when  applied  to  soldiers,  goes  no  farther  than  the  raising 
them;  but  I  consider  that  statute  also  as  a  parliamentary 
exposition  or  glossary  of  the  phrase  leve  de  gueri  e  in  the 
statute  of  Edward.  In  the  latter  opinion  I  am  supported 
by  1  Hale  85,  who  speaking  of  the  statute  of  Richard 
says  "  these  four  points  of  treason"  settled  by  the  parlia- 
ment of  Richard,  "  seems  to  be  included  within  the  statute 


the  Trial  of  Aaron  Burr.  335 

of  25  E.  3.  as  to  the  matter  of  them,  with  these  differences. 
1.  The  forfeiture  is  extended  further  than  it  was  former- 
ly, namely  to  the  forfeiture  of  estates  tail  and  uses.  2. 
Whereas  the  ancient  way  of  proceeding  against  common- 
ers, was  by  indictment,  and  trial  thereupon  by  the  country, 
the  trial  and  judgment  is  here  appointed  to  be  in  parlia- 
ment. 3.  But  that  wherein  the  principal  inconvenience  of 
this  act  lay,  was  this,  that  whereas  the  statute  of  25  Ed. 
3.  required  an  overt  act  to  be  laid  in  the  indictment  and 
proved  in  evidence,  this  hath  no  such  provision."  These 
are  all  the  differences  which  he  takes  between  them. 
Hence  it  is  clearly  the  opinion  of  Hale  that  the  treason  of 
levying  war  is  materially  the  same  in  both  statutes.  For 
if  the  statute  of  Edward  required  actual  war,  hard  knocks, 
bloody  battles,  to  constitute  treason,  while  that  of  Richard 
made  the  mere  preparation  for  those  purposes  treason, 
would  it,  could  it  have  escaped  such  a  mind  as  Hale's; 
more  particularly  when  he  was  especially  employed  in 
discriminating  between  the  twTo  statutes,  and  marking 
the  points  of  difference,  to  the  disadvantage  of  the  statute 
of  Richard.  If  nothing  short  of  actual  war  will  satisfy  the 
statute  of  Edward,  while  that  of  Richard  covers  so  much 
more  ground  as  to  comprehend  the  first  act  of  recruiting, 
and  to  make  that  treason,  how  can  the  former  be  said  to 
include  the  latter?  It  might  with  as  much  propriety  be 
said,  that  a  field  of  battle  includes  the  kingdom  within 
which  it  lies,  or  that  the  less  includes  the  greater.  Yet  of 
this  absurdity  Hale  has  been  guilty  unless  it  be  conceded 
that  the  statutes  of  Richard  and  of  Edward  are  materially 
the  same:  if  in  conformity  to  the  opinion  of  Hale,  this 
point  be  conceded,  then  as  it  is  indisputably  clear  and 
certain  that  the  statute  of  Richard  makes  levying  of  war 
to  consist  in  the  preparations  for  that  war,  in  the  raising 
of  men,  horses,  &c.  for  the  purpose  of  making  war;  then 
also  under  the  statute  of  Edward,  levying  war  means  the 


336  Mr.  Wirt's  Speech  on 

preparations  for  that  war.  And  if  this  construction  of  the 
statute  of  Edward  be  admitted,  we  have  but  to  remember 
that  our  definition  of  treason  is  borrowed  from  this  sta- 
tute, and  to  ask  whether  the  same  words,  levying  wary  in 
the  English  and  American  statutes  mean  the  same  thing. 
Confiding  in  the  candour  of  this  investigation  and  in 
the  truth  of  the  conclusion  to  which  it  has  led  me,  I 
should  myself  have  thought  the  mere  enlistment  of  sol- 
diers, of  itself,  an  overt  act  of  levying  war.  I  should  my- 
self think  such  enlistment  too,  sufficient  to  satisfy  the 
reason  of  the  statute  of  Edward,  and  consequently  that  of 
our  constitution  and  act  of  congress  in  requiring  an  overt 
act  to  be  proven.  What  is  the  reason  avowed  by  all  the 
books? — It  is,  because  the  secret  intentions  of  the  man 
lie  beyond  the  ken  of  mortal  sight.  They  can  be  known 
only  to  the  man  himself,  and  to  that  Being  whose  eye  can 
pierce  the  gloom  of  midnight,  and  the  still  deeper  gloom 
that  shrouds  the  traitor's  heart.  To  his  fellow  men  those 
intentions  can  be  manifested  only  by  some  external  or 
overt  act:  I  consider  the  phrase  overt  act  as  intended  to 
be  in  contrast  with  secret  intention;  but  whenever  this 
secret  intention  ripens  and  breaks  out  into  an  act,  of  which 
the  human  senses  can  take  cognizance,  I  consider  the 
reason  of  the  law  as  being  satisfied;  we  are  then  relieved 
from  the  necessity  of  prying  into  and  guessing  at  the  se- 
crets of  the  heart.  It  is  not  pretended  that  any  case  ever 
occurred  to  contradict  this  idea  until  the  case  which  is 
reported  by  Ventris;  which  has  been  said  by  some  mo- 
dern English  writer,  and  pronounced  by  your  honour  to 
settle  the  principle  that  the  mere  enlistment  of  soldiers  is 
not  sufficient  to  constitute  the  levying  of  war.  Permit 
me,  with  the  utmost  deference  and  respect  for  your 
honour,  to  examine  that  case,  and  see  whether  it  justifies 
a  conclusion  so  broad.  That  case  it  is  to  be  observed  is 
adjudged  under  the  statute  of  the  25  Ed.  3.  Now  it  re- 


the  Trial  of  Aaron  Burr.  337 

quires  but  to  adopt  for  a  moment  the  idea  which  I  have 
shown  to  be  sanctioned  by  Lord  Hale,  that  the  statute  of 
Richard  explains  by  a  paraphrasis  the  more  condensed 
definition  of  that  of  Ed.  to  perceive  the  reasoning  and 
whole  scope  of  the  case  in  Ventris: — "  If  a  man,"  says 
the  statute  of  Ed.  "  shall  levy  war  against  our  lord  the 
king  in  his  realm:"  "  or  he,"  says  the  statute  of  Richard, 
"  who  levies  men  and  horses,  against  the  king,  to  make 
war  in  his  realm."  The  levy,  then,  is  a  totally  different 
thing  from  the  war,  the  levy  is  the  preparation;  the  war 
is  the  purpose;  but  it  is  "  to  make  war  in  his  realm." 
Wheresoever  then  the  levy  is  made,  the  purpose  must  be 
to  make  war  in  the  realm.  Hence  it  is  very  clear  that 
although  the  levying  should  be  within  the  realm,  the  sta- 
tute would  not  be  satisfied,  unless  the  purpose  also  was 
to  make  war  within  the  realm.  It  is  upou  this  latter  point 
alone  that  the  case  in  Ventris  turns,  a*id  not  upon  the 
scene  of  the  enlistment,  nor  the  insufficiency  of  the  fact 
of  enlistment. — The  case  in  Ventris  is  that  of  Patrick 
Harding,  2  vol.  315,  16.  The  charge  in  the  indictment 
is  compassing  the  death  of  the  king  and  queen  (William 
and  Mary)  and  the  overt  act  laid  is  levying  war  by  raising 
divers  soldiers  and  men  armed  and  to  be  armed  [armatos 
et  armaturos)  "  et  milites  sic  ut  przefertur  levatos  extra 
hoc  regnum  Anglire  misit  et  iter  secum  suscipere  procu- 
ravit  ad  sese  jungendos  aliis  hostibus,"  &c.  the  special 
verdict  finds  that  the  prisoner  did  "  list,  hire,  raise  and 
procure  sixteen  men,  subjects  of  this  kingdom,  at  the 
time,  &c.  and  those  sixteen  men  so  listed,  hired,  raised 
and  procured,  did  send  out  of  this  kingdom,  into  the  king- 
dom of  France  to  assist  and  aid  the  French  king,"  &c.-~ . 
"  Upon  this  special  verdict  found,  the  Lord  Chief  Jus- 
tice, justice  Gregory,  and  justice  Ventris,  who  were  then 
present  at  the  sessions,  conceived  some  doubt;  for  they 
were  of  opinion  that  it  did  not  come  within  the  clause  of 
Vol.  II.  2  U 


338  Mr.  WirVs  Speech  on 

the  statute  of  25  Ed.  of  levying  war:  for  that  clause  is, 
if  a  man  levy  war  against  our  sovereign  lord  the  king  in 
his  realm;  and  by  the  matter  found  in  the  special  verdict 
it  appears  that  these  men  were  listed  and  sent  beyond  sea 
to  aid  the  French  king."  In  the  original  report  the  words 
in  his  realm  are  printed  in  Italics,  as  marking  the  parti- 
cular part  of  the  statute  on  which  the  opinion  rested.  But 
suppose  the  purposed  war  had  been  within  the  realm:  is 
not  the  implication  from  the  reasoning  of  the  court  irre- 
sistible, that  the  enlistment  would  have  been  a  sufficient 
overt  act  of  levying?  Is  it  not  clear  that  the  court  in  this 
case  considered  the  statute  of  Edward  as  explained  and 
expounded  by  that  of  Rich.  II:  that  they  distinguished 
between  the  levy  and  the  war,  and  required  according  to 
the  express  letter  of  the  second  statute  that  not  only  the 
preparation,  but  the  purposed  ivar  should  be  within  the 
realm?  But  it  has  been  said  that  if  the  enlistment  had 
been  a  sufficient  overt  act  of  levying  war,  then  war  had 
been  levied  within  the  realm.  But  this  is  confounding  the 
levy  with  the  war,  the  means  with  the  end,  the  prepara- 
tion with  the  purpose:  it  is  losing  sight  of  the  requisition 
of  the  statute  that  not  the  levy  merely,  but  the  intended 
war  shall  be  within  the  realm.  Besides  when  the  court 
avow  the  reason  of  their  opinion;  when  they  declare  it  to 
consist  (not  in  the  insufficiency  of  the  fact  of  preparation, 
but)  in  the  fact  that  the  proposed  war  was  to  be  out  of  the 
realm,  with  what  propriety  can  it  be  argued  that  their 
opinion  rested,  not  on  the  reason  which  they  themselves 
avow,  but  on  one  which  they  do  not  avow,  and  which 
they  disapprove  as  far  as  they  can  do  it  by  implication? 
If  it  was  immaterial  where  the  war  was  to  be,  if  the  en- 
listment of  men  was  in  itself  insufficient  as  an  overt  act 
of  levying  war,  why  did  not  the  court  take  this  ground 
at  once  and  say  that  the  mere  enlistment  of  men  was  not 
an  overt  act  of  levying  war?  The  answer  is  obvious;  it 


the  Trial  of  Aaron  Burr.  339 

was  because  they  considered  the  statute  as  requiring  that 
the  purposed  war  should  be  within  the  realm;  whereas 
the  war  as  found  by  the  jury  was  intended  to  be  out  of 
the  realm;  and  to  my  judgment,  the  inference  is  equally 
obvious  that  if  the  war  had  been  found  to  be  intended 
within  the  realm,  the  court  would  have  had  no  doubt  that 
the  war  had  been  levied  by  the  enlistment.  The  case  in 
Ventris  therefore  is  so  far  from  warranting  the  conclusion 
that  the  mere  enlistment  is  not  a  sufficient  overt  act  of 
levying  war,  that  m  my  conception,  it  warrants  the  con- 
clusion that  it  is  a  sufficient  act.  And  if  the  case  in  Ven- 
tris does  not  justify  that  doctrine  that  enlistment  is  insuf- 
ficient as  an  overt  act,  I  defy  the  gentlemen  to  produce  a 
case,  not  dependant  on  that,  which  does  warrant  it.  But 
let  me  yield  the  authority  of  this  case,  let  me  admit  it  to 
prove  what  it  has  been  supposed  to  prove,  still  it  impairs 
the  etymology  of  the  word  levying,  no  farther  than  this, 
that  raising  men  only  is  not  levying  war.  How  far  then 
are  we  to  carry  the  meaning  of  this  word  levy?  Shall  we 
add  the  other  meaning  of  the  word  in  the  original  lan- 
guage, and  say  that  the  men  must  not  only  be  raised, 
but  they  must  be  brought  together  or  assembled?  Be  it 
so;  and  I  contend  that  neither  the  courts  of  this  country 
nor  of  England  have  ever  required  more  than  an  assem- 
blage of  men  with  treasonable  intent;  whether  they  be 
armed  or  unarmed;  whether  they  use  force  or  not;  whe- 
ther their  numbers  be  great  or  small;  still,  according  to 
authority,  the  treason  is  complete. 

Arms  are  not  necessary.  Whenever  the  English  books 
have  appeared  to  require  them,  it  will  be  found,  on  exa- 
mination, to  be  in  the  statement  of  some  hypothetic  case, 
where  the  overt  act  is  to  contain,  within  itself,  evidence  of 
the  treasonable  intent:  but  whenever  the  treasonable  intent 
can  be  proved  by  evidence  extrinsic  of  the  overt  act,  arms 
have  never  in  any  case  been  required.  1  Hale  131,  for 


340  Mr.  Wirt's  Speech  on 

example,  puts  these  cases:  "  As  where  people  are  assem- 
bled in  great  numbers  armed  with  weapons  offensive  or 
weapons  of  war — if  they  march  thus  armed  hi  a  body — - 
if  they  have  chosen  commanders  or  officers — if  they  march 
cum  vexillis  explicatis,  or  with  drums  or  trumpets  or  the 
like." — In  all  these  cases  there  is  not  a  word  of  extrane- 
ous evidence  of  the  treasonable  intent: — but  that  intent 
was  to  be  fouftd  in  the  appearance  and  warlike  array  of 
the  assemblage  itself.  Mr.  Dallas,  whose  legal  opinions 
are  certainly  entitled  to  very  high  respect,  when  he  was 
of  counsel  for  John  Fries,  and  was  consequently  not  inte- 
rested in  extending  the  doctrine  of  treason,  admitted  the 
distinction  which  I  have  here  taken.  In  page  103  of  Fries's 
Trial  he  is  reported  to  have  said — "  As  on  the  one  hand 
I  grant  that  the  circumstance  of  military  array  is  not  ne- 
cessary to  an  act  of  treason,  if  the  intention  is  traitorous ; 
so  I  insist  on  the  other  hand  that  the  circumstance  of  mi- 
litary array  will  not  constitute  treason,  without  such  inten- 
tion." In  this  he  is  supported  by  all  the  English  authori- 
ties. Lord  Hale,  who  seems  more  than  any  other  writer 
or  judge  to  narrow  the  doctrine  of  treason,  no  where  says 
that  arms  are  necessary.  Speaking  of  the  difficulty  of 
defining  what  constitutes  levying  war,  he  says  it  is  com- 
monly expressed  by  the  words  modo  guerrino  arraiati,  1 
Hale's  P.  C.  131,  that  is,  in  treating  generally  of  the  sub- 
ject or  describing  the  offence  in  indictments  it  is  so  com- 
monly expressed;  and  in  this  light  he  is  understood  by 
Foster  ^08.  So  far  indeed  is  Lord  Hale  from  requiring 
military  array,  that  by  the  strongest  implication  he  de- 
clares it  unnecessary. — u  Again,  the  actual  assembling 
of  many  rioters  in  great  numbers  to  do  unlawful  acts,  if 
it  be  not  modo  guerrino  or  specie  belli,  as  if  they  have  no 
military  arms  nor  march  nor  continue  in  the  posture  of 
war,  may  make  a  great  riot,  yet  doth  not  always  amount 
to  a  levying  of  war."  What  is  the  candid  inference  from 


the  Tried  of  Aar 07i  Burr.  341 

this  passage?  that  sometimes  such  an  unarmed  assemblage, 
without  the  warlike  array  or  the  show  of  war,  may  amount 
to  a  levying  of  war;  for  if  this  be  not  the  inference,  the 
word  always  used  by  Lord  Hale  has  no  signification 
whatever.  I  affirm  that  no  case  can  be  produced  to  show 
arms  to  be  necessary;  that  no  description  of  an  overt  act 
in  which  arms  form  a  necessary  ingredient  can  be  ad- 
duced, unless  when  the  overt  act  is  itself  to  afford  the 
only  evidence  of  the  design:  nor  can  even  the  dictum  of 
an  elementary  writer  be  adduced  to  prove  that  arms  are 
necessary.  That  on  the  contrary  every  writer  and  every 
judge  who  has  had  occasion  to  mention  the  subject  di- 
rectly, has  declared  arms  to  be  unnecessary,  if  the  intention 
can  be  otherwise  proven.  "  I  do  not  think,"  says  Foster 
208,  "  any  great  stress  can  be  laid  upon  this  distinction, 
(being  armed  or  unarmed.)  It  is  true  that  in  case  of  levy- 
ing war,  the  indictments  generally  charge  that  the  defen- 
dants were  armed  and  arrayed  in  a  warlike  manner;  and 
where  the  case  would  admit  of  it,  the  other  circumstances 
of  swords,  guns,  drums,  colours,  &x.  have  been  added. 
But  I  think  the  merits  of  the  case  have  never  turned 
singly  on  any  of  these  circumstances." 

"  In  the  cases  of  Damaree  and  Purchase,"  he  continues, 
"  which  are  the  last  printed  cases  which  have  come  in 
judgment  on  the  point  of  constructive  levying  war,  there 
was  nothing  given  in  evidence  of  the  usual  pageantry  of  war; 
no  military  weapons,  n,o  banners  or  drums,  nor  any  regular 
consultation  previous  to  the  rising;  and  yet  the  want  of 
these  circumstances  weighed  nothing  with  the  court, 
though  the  prisoner's  counsel  insisted  much  on  that  mat- 
ter." In  the  same  paragraph  he  adds  what  confirms  Mr. 
Dallas's  distinction. — "  The  true  criterion  in  all  these 
cases  is,  Quo  animo  did  the  parties  assemble."  East,  in 
his  crown  law,  page  67,  collects  the  authorities  together, 
and  proves  the  truth  of  Foster's  positions,  that  arms  or 
military  array  are  unnecessary;  and  that  the  intention  is 


542  Mr.  Ifirt's  Speech  on 

the  criterion.  Judges  Chase,  Iredell,  and  Foster  expressly 
declare  themselves  of  Foster's  opinion.  I  beg  leave  to 
read  a  short  paragraph  from  judge  Chase's  charge  to  the 
jury  on  the  trial  of  Fries,  197.  "  The  court  are  of  opinion 
that  military  weapons  (as  guns  and  swords  mentioned  in 
the  indictment)  are  not  necessary  to  make  such  insurrec- 
tion or  rising  amount  to  levying  war;  because  numbers 
may  supply  the  want  of  military  weapons,  and  other  in- 
struments may  effect  the  intended  mischief:  The  legal 
guilt  of  levying  zvar  may  be  incurred  without  the  use  of 
military  weapons  or  military  array. "  I  think  I  may  now 
consider  it  as  proven  that  arms  are  not  necessary  to  the 
constitution  of  treason.  Since  then  no  arms  were  necessa- 
ry to  make  the  assemblage  on  the  island  a  treasonable  as- 
semblage, it  is  scarcely  worth  while  to  notice  Mr.  Wick- 
ham's  observation  that  the  rifles  which  are  proven  to  have 
been  in  the  hands  of  the  men  there,  are  not  necessarily 
military  weapons.  I  suspect,  however,  that  there  may  yet 
be  those  living  in  Great  Britain  who  remember  the  name 
of  general  Morgan,  and  who  can  bear  witness  that  a  rifle 
in  the  hands  of  a  back-woodsman  of  America  is  a  milita- 
ry weapon  emphatically,  and  as  formidable  a  one  too  as  a 
soldier  need  wish  to  encounter. 

But  we  are  told  if  arms  be  not  necessary ,  force  is  neces- 
sary to  make  an  assemblage  treasonable:  let  us  now  in- 
quire if  this  be  so. 

On  this  branch  of  the  enquiry  I  beg  leave  to  premise 
that  in  the  several  cases  on  this  subject,  the  word  force  is 
generally  used  figuratively;  intended  to  signify  the  assem- 
bled body  and  not  any  deed  of  violence  actually  commit- 
ted by  them:  thus  in  Vaughan's  case  it  is  stated  that  he 
came  with  an  armed  force;  and  in  the  opinion  of  the  pre- 
siding judge  of  this  court,  in  the  motion  to  commit  the 
prisoner  in  March  last,  we  also  find  this  word  used  in  this 
figurative  sense — page  S3:  after  saying  it  is  clear  that  an 


the  Trial  of  Aaron  Burr.  343 

intention  to  commit  treason  is  an  offence  entirely  distinct 
from  the  actual  commission  of  that  crime,  the  judge  pro- 
ceeds, "  War  can  only  be  levied  by  the  employment  of 
actual  force.  Troops  must  be  embodied;  men  must  be 
assembled  in  order  to  levy  war."  The  troops  then  being- 
embodied,  the   men   being  assembled,   war  is  thereby 
levied;  force  is  employed;  not  that  a  blow  is  actually 
struck;  but  that  there  is  a  body  capable  of  using  force,  if 
they  please  to  use  it.  Sir,  as  to  the  demand  of  actual  vio- 
lence, there  is  not  an  English  authority  which  coun- 
tenances it;  they  concur  in  disclaiming  it.  They  take  the 
distinction  between  the  bellum  levatum  and  the  bellum 
percussum:  thus  Foster  218, — "  An  assembly  armed  and 
arrayed  in  a  warlike  manner  for  any  treasonable  purpose 
is  bellum  levatum  although  not  bellum  percussum.  Listing 
and  marching  are  sufficient  overt  acts  without  coming  to  a 
battle  or  action.''''  1  East,  67,  repeats  this  doctrine,  and 
cites  various  cases  in  support  of  it.  Salkeld's  Reports, 
635 — "there  may  be  levying  war  without  actual  fight- 
ing." Same  case,  5  St.  Tri.  37.  There  is  not  a  single 
English  authority  which  requires  force,  that  is  actual 
violence,  or  the  bellum  percussum:  the  assemblage  and 
clear  evidence  of  the  treasonable  design  have  always  been 
held  sufficient.  The  case  of  Purchase  has  been  erro- 
neously stated  from  the  bar.  That  case  did  not  turn  upon 
the  question  of  force  or  no  force;  the  difficulty  in  his  case 
arose  from  this  circumstance;  it  appeared  that  Purchase 
knew  nothing  of  the  designs  and  motives  of  the  rising:  it 
was  questioned  therefore  whether  the  act  of  others  could 
be  imputed  to  him.  This  is  proven  by  the  original  trial 
itself;  and  so  Foster,  215,  considers  it.  "  With  regard  to 
Purchase  there  was  some  diversity  of  opinion  among  the 
judges  present  at  his  trial,  because  it  did  not  appear  upon 
the  evidence  that  he  had  any  concern  in  the  original  rising, 
©r  was  present  at  the  pulling  down  any  of  the  houses,  or 


344  Mr.  Wirt's  Speech  on 

any  way  active  in  the  outrages  of  the  night,  except  his 
behaviour  at  the  bonfire  in  Drurv  Lane,  whither  he  came 
by  mere  accident  for  aught  appeared  to  the  contrary;" 
but  suppose  he  had  been  concerned  in  the  original  rising, 
or  had  been  present  at  the  pulling  down  the  houses  and 
encouraged  it  by  his  voice;  would  there  have  been  any 
doubt?  The  reasoning  of  the  case  shows  that  there  would 
not:  and  even  as  it  was,  although  three  of  the  judges 
doubted,  the  majority  of  them  agreed  in  his  guilt  and  he 
was  condemned  accordingly.  The  case  in  Kelying,  75, 
on  which  the  gentleman  so  much  relies  to  prove  the  ne- 
cessity of  force,  is  one  of  those  cases  in  which  the  trea- 
sonable intent  is  only  manifested  by  the  employment  of 
force  and  the  extent  to  which  it  is  carried.  It  was  the  case 
of  a  riot,  a  sudden  ebullition  of  popular  passion  preceded 
by  no  concert,  no  arrangement,  and  a  case  therefore  in 
which  the  intent  was  unsusceptible  of  proof,  except  by 
the  acts  of  the  mob.  It  was  a  case,  I  will  add,  in  which 
any  kind  of  force  would  not  have  been  sufficient  to  make 
k  treason;  for  if  they  had  stopped  with  pulling  down  one 
bawdy  house,  or  opening  one  prison  to  let  out  a  favourite 
prisoner,  that  would  have  been  a  riot  merely;  they  con- 
tinued however,  together,  and  in  action  for  two  days,  and 
showed  by  the  extent  and  nature  of  the  violence  which 
they  practised,  that  their  intent  was  general  and  universal. 
From  such  a  case  surely  nothing  can  be  inferred  which 
will  fairly  apply  to  a  case  so  different  as  that  at  bar:  a  case 
in  which  there  was  a  previous  concert  and  arrangement, 
and  a  case  in  which  the  quo  ammo,  the  criterion  of  the 
crime,  is  susceptible  of  proof  independent  of  the  assem- 
blage. Let  us  come  now  to  our  own  country  and  see  if 
our  adjudications  require  actual  force.  Before  I  proceed 
to  the  examination  of  Fries's  case,  let  me  remind  you  of 
an  observation  of  Mr.  Randolph's,  equally  elegaut  and 
true;  "  an  elementary  principle  resulting  from  the  circum- 


the  Trial  of  Aaron  Burr.  345 

stances  of  a  particular  case,  and  to  be  found  in  that  sin- 
gle case  only,  should  never  be  applied  except  to  a  case 
parallel  in  its  circumstances."  Nothing  can  be  more  just 
than  this  remark;  and  it  is  by  violating  the  rule  which  it 
contains,  that  so  much  jarring,  so  much  irreconcileable 
discord,  so  much  Babylonian  confusion  is  seen  to  exist 
among  our  cases.  With  this  remark  let  us  come  to  the 
trial  of  Fries.  What  was  the  circumstances  of  that  case? 
There  had  been  actual  violence;  it  was  also  a  disorganized 
and  disorderly  riot,  and  the  reasoning  of  the  British  cases 
applied  to  its  character.  But  as  there  had  been  violence  in 
that  case,  and  the  judge  in  charging  the  jury  was  giving 
a  description  of  treason  adapted  to  the  case  at  bar,  what 
was  more  natural  than  for  him  to  introduce  that  feature  of 
the  case  into  his  description.  It  will  be  found  that  judge 
Chase  considers  the  case  of  Fries  as  a  riot,  and  reasons 
upon  it  in  that  point  of  view,  applying  to  it  all  the  En- 
glish doctrine  of  riot,  where  violence,  as  before  remarked, 
is  the  only  evidence  of  treasonable  intent.  But  if  each 
dictum  of  the  judge  in  delivering  that  charge  is  to  be  con- 
sidered as  an  abstract  truth,  it  will  be  easy  to  find  in  that 
charge  the  clearest  indications  of  his  opinion  that  violence 
is  not  necessary.  Thus  in  page  196,  "  It  is  the  opinion 
of  the  court  that  any  insurrection  or  rising  of  any  body  of 
people  within  the  United  States,  to  attain  or  effect  by 
force  or  violence  any  object  of  a  great  public  nature,  or 
of  public  and  general  (or  national)  concern,  is  a  levying 
of  war  against  the  United  States,  within  the  contemplation 
and  construction  of  the  constitution."  Here  it  is  not  the 
actual  attainment  of  the  object,  by  violence,  which  is  de- 
clared to  constitute  the  treason;  it  is  the  rising  for  that 
purpose;  and  in  this  supposed  case  nothing  is  found  but 
the  assemblage  and  the  treasonable  purpose  or  intent.  In 
the  succeeding  paragraph  he  repeats  the  same  opinion. 
In  the  next  he  declares  military  weapons  unnecessary; 
Vol.  II.  2  X 


346  Mr.  WirVs  Speech  on 

then  proceeds  with  the  more  particular  doctrines  of  riots; 
as  that  the  purpose  must  be  general  or  universal;  not  pri- 
vate or  personal.  The  intention  he  says  is  the  true  crite- 
rion of  the  offence.  The  next  comes  a  paragraph  which 
has  been  much  relied  on:  "  The  court  are  of  opinion  that 
if  a  body  of  people  conspire  and  meditate  an  insurrection 
to  resist  or  oppose  the  execution  of  any  statute  of  the 
United  States  by  force,  that  they  are  only  guilty  of  a  high 
misdemeanor;  but  if  they  proceed  to  carry  such  intention 
into  execution  by  force,  that  they  are  guilty  of  the  treason 
of  levying  war;  and  the  quantum  of  the  force  employed 
neither  lessens  nor  increases  the  crime;  whether  by  one 
hundred  or  one  thousand  persons  is  wholly  immaterial." 

1  understand  the  word  force  here,  to  be  used  in  its  figu- 
rative sense;  that  it  is  used  as  contrasted  with  the  conspi- 
racy or  meditation  of  the  treason;  that  it  is  used  to  signify 
the  body  assembled  for  the  purpose  of  carrying  that  con- 
spiracy into  effect;  hence  it  is,  that  in  the  concluding 
member  of  that  paragraph,  he  speaks  of  the  number  so 
assembled,  or  what  he  calls  the  quantum  of  the  force, 
declaring  it  to  be  immaterial  whether  by  one  hundred  or 
one  thousand.  In  the  next  paragraph  he  maintains  the 
same  idea,  concluding  that  paragraph  with  these  words, 
"  but  it  is  altogether  immaterial  whether  the  force  used  is 
sufficient  to  effectuate  the  object;  any  force  connected  with 
the  intention  will  constitute  the  crime  of  levying  wary 
He  proceeds  to  state  that  this  opinion  is  in  substance  the 
same  with  the  opinion  of  the  circuit  court  in  1795,  in  the 
case  of  Vigol  and  Mitchell.  Now  in  the  case  of  Vigol, 

2  Dall.  347,  the  court  give  no  absolute  opinion;  the 
opinion  is  rigidly  confined  to  the  circumstances  of  that 
case,  in  which  the  judge  states,  there  were  acts  of  vio- 
lence and  devastation.  But  in  the  case  of  Mitchell,  id.  356, 
the  judge,  Patterson,  commenting  on  the  circumstance 
of  its  not  being  sufficiently  proven,  that  the  prisoner  was 


the  Trial  of  Aaron  Burr.  347 

at  General  Nevill's  house,  where  the  violence  was  used, 
speaks  thus: — "  He  is  proved  by  a  competent  number  of 
witnesses  to  have  been  at  Couches  Fort.  At  Couches 
Fort  the  conspiracy  was  formed  for  attacking  Gen.  Ne- 
vill's house,  and  the  prisoner  was  actually  passed  on  the 
march  thither.  Now  in  Foster,  213,  the  very  act  of 
marching  is  considered  as  carrying  the  traitorous  intent 
into  effect. "  In  a  subsequent  part  of  his  opinion,  speak- 
ing of  the  conspicuous  figure  which  the  prisoner  had 
made,  the  judge  uses  these  explicit  words:  "  His  atten- 
dance armed,  at  Braddock's  field,  would  of  itself  amount 
to  treason,  if  his  design  was  treasonable."  So  that  if  judge 
Chase's  opinion  be,  as  he  professes,  substantially  the  same 
with  this  of  judge  Patterson's,  then  a  deed  of  violence  is 
not  necessary,  but  the  assembly  and  treasonable  intent 
are  enough.  Judge  Chase  sums  up  his  opinion  in  these 
words:  "  If  from  a  careful  examination  of  the  evidence, 
you  shall  be  convinced  that  the  real  object  and  intent  of 
the  people  assembled  at  Bethlehem,  was  of  a  public  na- 
ture, (which  it  certainly  was  if  they  assembled  with  intent 
to  prevent  the  execution  of  both  the  above-mentioned 
acts  of  congress  or  either  of  them)  it  must  then  be  proved 
to  your  satisfaction  that  the  prisoner  at  the  bar  incited, 
encouraged,  provided,  or  assisted  in  the  insurrection  or 
rising  of  the  people  at  Bethlehem,  and  the  terror  they 
carried  with  them,  with  intent  to  oppose  and  prevent,  by 
means  of  intimidation  and  violence,  the  execution  of  both 
the  above-mentioned  acts  of  congress  or  either  of  them; 
and  that  some  force  was  used  by  some  of  the  people  as- 
sembled at  Bethlehem."  But  for  these  concluding  words 
the  opinion  of  the  judge  would  have  resulted  merely  in 
requiring  what  Mr.  Wickham  calls  potential  force;  the 
last  words  may  well  be  accounted  for  from  the  particular 
circumstance  of  this  case  in  which  there  was  actual  vio- 
lence; and  I  will  venture  to  affirm  that  it  is  the  only  case 


348  Mr.  WirVs  Speech  on 

in  which  a  deed  of  violence  ever  was  declared  necessary 
when  the  assemblage  and  treasonable  intent  could  both 
be  made  out  by  proof  independent  of  any  such  deed.  If 
there  be  another  let  it  be  shown.  If  this  case  stands  alone, 
why  will  you  make  this  principle  an  abstract  and  general 
one;  since  in  the  language  of  Mr.  Randolph  it  results 
from  the  circumstances  of  this  particular  case  and  can  be 
found  in  this  case  only.  I  have  shown  that  in  England  the 
distinction  is  clearly  settled  between  the  bellum  levatum 
and  the  bellum  percussum;  and  that  there  war  may  be  levi- 
ed although  no  blow  be  struck;  I  will  now  show  that  by 
the  authority  of  a  court  of  this  country  superior  to  that 
in  which  judge  Chase  sat,  it  has  been  in  substance  de- 
clared again  and  again,  that  war  may  be  levied  without 
bat;le;  th.t  the  assemblage  with  a  treasonable  intent  com- 
pletes the  crime  of  levying  war;  you  will  know,  sir,  that 
I  am  referring  to  the  opinion  of  the  supreme  court  in  the 
case  of  Bollman  and  Swartwout.  In  that  case,  page  39,  40, 
the  court  commences  the  declaration  of  its  opinion: — 

"  Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort." 

"  To  constitute  that  specific  crime  for  which  the  pri- 
soners now  before  the  court  have  been  committed,  war 
must  be  actually  levied  against  the  United  States.  How- 
ever flagitious  may  be  the  crime  of  conspiring  to  subvert 
by  force  the  government  of  our  country,  such  conspiracy- 
is  not  treason.  To  conspire  to  levy  war,  and  actually  to 
levy  war,  are  distinct  offences.  The  first  must  be  brought 
into  operation  by  the  assemblage  of  men  for  a  purpose 
treasonable  in  itself  or  the  fact  of  levying  war  cannot  have 
been  committed." 

Is  there  any  requisition  of  force  here?  Is  it  said  that 
the  conspiracy  must  be  brought  into  operation  by  the  as- 
semblage of  men  for  a  purpose  treasonable  in  itself,  and 


the  Trial  of  Aaron  Burr.  349 

by  deeds  of  force  and  violence,  or  the  fact  of  levying  war 
cannot  have  been  committed*?  No,  sir,  it  is  the  assemblage 
oj  men  for  a  purpose  treasonable  in  itself  which  alone  is 
declared  sufficient  to  make  the  fact  of  levying  war.  "  It 
is  not  the  intention  of  the  court  to  say,  that  no  individual 
can  be  guilty  of  this  crime  who  has  not  appeared  in  arms 
against  his  country.  On  the  contrary,  if  war  be  actually 
levied,  that  is,  if  a  body  of  men  be  actually  assembled  for 
the  purpose  of  effecting,  by  force,  a  treasonable  purpose, 
all  those  who  perform  any  part,  however  remote  from  the 
scene  of  action,  and  who  are  actually  leagued  in  the  gene- 
ral conspiracy,  are  ro  be  considered  as  traitors.  But  there 
must  be  an  actual  assembling  of  men  for  the  treasonable 
purpose,  to  constitute  a  levying  of  war."  Here  force  is 
mentioned;  but  how  is  it  mentioned?  Merelv  as  the  ulti- 
mate  purpose  of  the  assemblage:  the  means  by  which  they 
intend  to  execute  their  treasonable  design:  So  in  the  as- 
semblage on  the  island  their  object  was  the  seizure  of 
Orleans;  they  intended  to  effect  that  purpose  by  force: 
there  was  then  a  body  of  men  actually  assembled;  and 
the  purpose  which  brought  them  together,  and  which  they 
were  going  to  effect  by  force,  was  a  treasonable  purpose, 
"  To   complete  the   crime  of  levying  war   against   the 
United  States,  there  must  be  an  actual  assemblage  of  men 
for  the  purpose  of  executing  a  treasonable  design."  Here 
an  actual  assemblage  of  men  for  the  purpose  of  executing 
a  treasonable  design  is  declared  to  complete  the  crime  of 
levying  war:  not  a  word  of  force  or  deeds  of  violence;  yet 
the  crime  is  completed.  The  court  profess  to  be  enume- 
rating the  ingredients  which  taken  together  would  make 
this  crime;  and  conclude  the  enumeration  by  stating  that 
that  would  complete  it,  yet  it  is  pretended  by  the  gentle- 
men on  the  other  side  that  the  great  ingredient  of  force 
and  violence  not  enumerated  by  the  court  is  necessary  to 
its  completion.  "In  the  case  now  before  the  court,  a  de 


350  Mr.  Wirfs  Speech  on 

sign  to  overturn  the  government  of  the  United  States  in 
New- Orleans  by  force,  would  have  been  unquestionably 
a  design  which  if  carried  into  execution  would  have  been 
treason,  and  the  assemblage  of  a  body  of  men  for  the  pur- 
pose of  carrying  it  into  execution,  would  amount  to  levy- 
ing war  against  the  United  States,  but  no  conspiracy  for 
this  object,  no  enlisting  of  men  to  effect  it,  would  be  an 
actual  levying  of  war."  Here  again  the  court  declare  that 
the  assemblage  for  the  treasonable  purpose  would  amount 
to  levying  war;  well,  if  that  would  amount  to  levying  war, 
it  required  nothing  else  to  make  it  amount  to  it;  yet  gen- 
tlemen persist  in  saying  it  did  require  something  else,  as 
deeds  of  violence,  to  make  the  assemblage  an  act  of  levy- 
ing war,  or  what  is  bolder  still,  that  these  deeds  of  vio- 
lence were  required  by  the  opinion  of  that  court.  In  other 
words,  that  while  the  court  was  perpetually  and  uniformly 
saying  one  thing,  they  as  uniformly  meant  a  totally  dif- 
ferent one. — Let  us  proceed  with  the  opinion.  "  If  this 
enterprise  was  against  Mexico,  it  would  amount  to  a  high 
misdemeanor;  if  against  any  of  the  territories  of  the  United 
States,  or  if  in  its  progress  the  subversion  of  the  govern- 
ment of  the  United  States,  in  any  of  their  territories,  was 
a  mean  clearly  and  necessarily  to  be  employed,  if  such 
mean  formed  a  substantive  part  of  the  plan,  the  assem- 
blage of  a  body  of  men  to  effect  it  would  be  levying  war 
against  the  United  States." 

"  But  whether  this  treasonable  intention  be  really  im- 
putable to  the  plan  or  not,  it  is  admitted  that  it  must  have 
been  carried  into  execution  by  an  open  assemblage  oj  men 
for  that  purpose,  previous  to  the  arrest  of  the  prisoner,  in 
order  to  consummate  the  crime  as  to  him;  and  a  majority 
of  the  court  is  of  opinion,  that  the  conversation  of  Mr. 
S  wart  wout  affords  no  sufficient  proof  of  such  assembling." 

We  have  been  before  told  that  the  assemblage  with  the 
treasonable  intent  would  amount  to  levying  war,  would 


the  Trial  of  Aaron  Burr.  351 

complete  the  crime  of  levying  war;  here  in  variant  lan- 
guage, but  language  equally  as  strong  if  not  stronger — 
we  are  told,  that  if  the  treasonable  intent  is  carried  into 
execution, — how?  by  deeds  of  violence  and  force?  No: 
but  by  an  open  assemblage  of  men  for  that  treasonable 
purpose, — this  crime  is  consummated;  not  that  by  such  as- 
semblage the  crime  is  in  an  incipient  stage;  not  that  it  is 
advancing  to  maturity;  but  that  it  is  consummated.  To 
remove  all  possibility  of  doubt,  the  court  then  begin  to 
consider  the  subject  analytically.  "  The  prisoner  stated 
that"  "  Col.  Burr,  with  the  support  of  a  powerful  associ- 
ation, extending  from  New- York  to  New-Orleans,  was 
levying  an  armed  body  of  seven  thousand  men  from  the 
state  of  New- York,  and  the  western  states  and  territories, 
with  a  view  to  carry  an  expedition  to  the  Mexican  ter- 
ritories." 

"  That  the  association,  whatever  may  be  its  purpose, 
is  not  treason,  has  been  already  stated.  That  levying  an 
army  may  or  may  not  be  treason,  and  that  this  depends 
on  the  intention  with  which  it  is  levied,  and  on  the  point 
to  which  the  parties  have  advanced,  has  been  also  stated. 
The  mere  enlisting  of  men  without  assembling  them  is 
not  levying  war.  The  question  then  is,  whether  this  evi- 
dence proves  Col.  Burr  to  have  advanced  so  far  in  levy- 
ing an  army  as  actually  to  have  assembled  them."  Here 
again  it  is  clear  that  if  the  case  has  gone  so  far  as  that  the 
men  have  been  assembled,  the  crime  in  the  opinion  of 
the  court  is  complete.  Proceeding  with  the  analysis  the 
court  say:  "  It  cannot  be  necessary  that  the  whole  army 
should  assemble,  and  that  the  various  parts  which  are  to 
compose  it  should  have  combined.  But  it  is  necessary 
there  should  be  an  actual  assemblage,  and  therefore  this 
evidence  should  make  the  fact  unequivocal." 

"  The  travelling  of  individuals  to  the  place  of  rendez- 
vous would  perhaps  not  be  sufficient.  This  would  be  an 


352  Mr.  WirVs  Speech  on 

equivocal  act,  and  has  no  warlike  appearance."  The  meet- 
ing of  particular  bodies  of  men,  and  their  inarching  from 
places  of  partial  to  a  place  of  general  rendezvous,  would 
be  such  an  assemblage. 

"  The  particular  words  used  by  Mr.  Swartwout  are, 
that  Col.  Burr  was  levying  an  armed  body  of  seven 
thousand  men."  If  the  term  levying  in  this  place  imports 
that  they  were  assembled,  then  such  fact  would  amount, 
if  the  intention  be  against  the  United  States,  to  levying 
war. — If  it  barely  imports  that  he  was  enlisting  or  en- 
gaging them  in  his  service,  the  fact  would  not  amount  to 
levying  war. 

"  It  is,  therefore,  the  opinion  of  a  majority  of  the  court, 
that  in  the  case  of  Samuel  Swartwout,  there  is  not  suffi- 
cient evidence  of  his  levying  war  against  the  United 
States  to  justify  his  commitment  on  the  charge  of  trea- 
son." After  this  language  so  clear  and  unequivocal,  I 
should  feel  that  I  was  insulting  the  understanding  of  the 
court,  if  I  were  to  press  the  enquiry  whether  deeds  of 
violence  are  necessary  to  constitute  the  treason  of  levying 
war  against  the  United  States.  So  far  from  deeds  of  vio- 
lence, the  court  does  not  even  require  the  assemblage  of 
the  whole  force;  but  expressly  declare  that  the  mere 
marching  of  individuals  from  a  place  of  partial  to  a  place 
of  general  rendezvous  is  such  an  assemblage  as  would 
amount  to  levying  war.  Our  court  in  this  case  has  clear- 
ly maintained  the  line  of  demarcation  acknowledged  by 
the  British  courts  between  the  bellum  levatum  and  the 
bellum  percussum. 

Does  reason,  sir,  any  more  than  law,  require  that  you 
should  wait  until  the  blow  be  struck?  If  so,  adieu  to  the 
law  of  treason  and  to  the  chance  of  punishment.  The 
aspiring  traitor  has  only  to  lay  his  plan,  assemble  his 
forces,  and  strike  no  blow  till  he  is  in  such  power  as  to 
defy  resistance.  Then  what  becomes  of  your  constitution. 


the  Trial  of  Aaron  Burr.  353 

your  law  of  congress,  or  your  courts?  He  laughs  them  to 
scorn. 

But  where  can  be  the  necessity  of  waiting  for  actual 
violence?  The  overt  act  is  only  required  as  proof  of  the 
secret  intention:  now,  although  it  is  true,  as  Mr.  Lee  says, 
that  hard  knocks  are  things  we  can  all  feel,  yet  it  is  equal- 
ly true,  that  an  assemblage  of  men  is  an  object  we  can  all 
see;  true  it  is,  as  the  gentleman  says,  that  small  arms  and 
cannons  may  be  heard;  so  may  the  disclosure  of  a  trea- 
sonable plot.  At  least  the  overt  act  which  they  require  is 
but  an  appeal  to  the  human  senses;  and  the  overt  act 
which  we  have  proven  is  equally  satisfactory  to  them. 

But  Mr.  Randolph  wishes  to  know  if  enlisting  be  not 
enough,  where  you  will  draw  the  line  short  of  force:  the 
answer  is  obvious;  at  the  assemblage;  where  the  courts  of 
England  and  the  highest  court  of  this  country  have  con- 
curred in  drawing  it. 

Mr.  Wickham,  indeed,  complains  that  if  you  stop  short 
of  actual  force,  you  take  away  the  locus  penitentice.  I  say, 
if  you  do  not  stop  short  of  it,  you  take  away  the  motive 
of  repentance;  for  you  offer  the  traitor  victory  and  triumph, 
and  it  is  not  in  their  arms  that  we  are  to  expect  from  him 
repentance.  But  was  there,  sir,  no  opportunity  for  repen- 
tance in  this  case?  We  shall  prove  that  the  prisoner  was 
for  more  than  a  year  brooding  over  this  treason.  The  ruin 
and  desolation  which  he  was  about  to  bring  upon  this 
country,  must  have  been  often  before  him.  If  all  love  of 
his  country  were  so  far  extinguished  in  his  breast  that  he 
would  not  forbear;  if  the  downfall  of  liberty  and  the  hor- 
rors of  civil  war  gave  no  pan'g  of  remorse  to  his  bosom, 
why  for  his  own  sake  did  he  not  repent?  Why  did  he  not 
remember  the  treason  of  Caesar,  and  the  dagger  of  Bru- 
tus? Why  did  he  not  remember  Cromwell,  as  bold  and 
daring  as  himself,  and  the  miserable  effects  of  his  suc- 
cessful usurpation;  the  terrors  that  haunted  and  scourged 
Vor.  II.  2Y 


354  Mr.  Wirfs  Speech  on 

him  day  and  night,  and  blasted  him  even  amidst  the 
splendor  of  a  palace.  Caesar  and  Cromwe.i,  he  did  re- 
member; not  to  detest  and  to  repent,  but  to  envy,  to  ad- 
mire and  to  emulate.  Such  is  the  kind  of  remorse  which 
he  felt  at  the  idea  of  drenching  his  country  in  blood,  and 
substituting  despotism  for  liberty;  such  the  very  promi- 
sing disposition  and  temper  for  repentance  which  alone 
he  manifested. 

Sir,  it  is  clear  that  neither  reason  nor  law  require  ac- 
tual war,  the  bellum  percussion,  in  order  to  make  a  levying 
of  war. 

But  Mr.  Wickham  tells  us,  that  it  actual  force  be  not 
necessary,  potential  force  at  least  is  necessary;  and  by  po- 
tential force  he  means  intimidation.  To  illustrate  his 
meaning  still  more  distinctly,  he  puts  this  case:  suppose 
a  body  of  men  assemble  in  the  country  in  great  numbers 
and  move  into  this  town  for  the  purpose  of  attacking  the 
capitol  and  seizing  the  public  arms;  the  people  of  the 
town,  intimidated  by  them,  stand  aloof  and  make  no  re- 
sistance; this,  says  he,  is  potential  force. 

To  this  requisition  I  have  two  answers: 

First,  that  neither  the  law  of  England  nor  the  supreme 
court  of  this  country  require  any  such  thing.  I  need  not 
repeat  the  authorities  upon  this  subject.  The  passages 
which  I  have  recently  read  from  the  decision  of  the  su- 
preme court  are  fresh  upon  your  memory;  and  you  know 
that  they  do  not  even  squint  at  any  such  idea;  but  repeat- 
edly declare  the  crime  to  be  completed  and  consummated 
by  the  bare  assemblage  for  a  treasonable  purpose. 

My  second  answer  to  this  requisition  of  poiential  force 
is  this,  that  if  it  be  necessary,  and  if  I  understand  what  is 
meant  by  it,  it  does  exist  in  the  case  at  bar.  Let  us  ex- 
amine what  is  meant  by  potential  force.  In  the  case  put 
bv  the  gentleman  of  a  multitude  marching  to  attack  the 
capitol  and  the  people  of  the  town  standing  off  in  appre- 


the  Trial  of  Aaron  Burr.  355 

hension  and  alarm;  what  is  the  force  which  operates?  not 
hard  knocks,  confessedly;  but  the  excitement  of  fear  and 
apprehension.  Suppose,  however,  that  the  town  people, 
instead  of  being  frightened  into  submission,  had  been 
excited  by  apprehensions  for  their  capitol  and  themselves, 
to  take  arms  in  their  defence;  the  same  affection  of  the 
mind  would  still  be  in  operation,  although  in  a  different 
degree;  it  would  still  be  apprehension  for  their  safety, 
which  would  urge  them  to  their  defence;  in  this  case  the 
approaching  body,  although  not  successful,  has  had  its 
effect;  it  has  compelled  the  town  to  arm  in  opposition  to 
it;  would  not  this  be  completely  the  exertion  of  potential 
force;  would  not  the  town  have  been  forced  to  its  defence; 
and  as  the  force  which  produced  that  effect  was  not  ac- 
tual, must  it  not  have  been  potential?  Suppose,  in  this 
case,  the  town,  thus  compelled  to  arm  in  its  defence, 
should  march  out  to  meet  the  approaching  body;  should 
rout  them,  without  a  blow  on  either  side,  and  should 
seize  and  destroy  their  baggage  waggons:  I  ask  whether 
this  approaching  body,  formed  of  citizens,  would  not  be 
traitors?  My  reason  and  judgment  tell  me  that  the  force 
then  acting  on  the  inhabitants  of  the  town,  the  alarm  which 
made  them  fly  to  arms,  is  potential  force,  and  that  those 
who  had  exerted  this  species  of  force  upon  the  town, 
would  be  traitors  even  according  to  Mr.  Wickham's  con- 
ception. 

I  ask  then,  whether  the  assemblage  on  Blannerhasset's 
island  did  not  exert  this  species  of  potential  force  on  the 
surrounding  country?  What  was  it  that  urged  the  state 
government  of  Ohio,  to  send  a  body  of  men  to  take  this 
party  and  seize  their  boats?  It  was  a  well  founded  alarm 
and  apprehension  of  the  objects  of  this  assemblage. 
What  was  it  that  caused  the  militia  of  Wood  county  to 
be  put  in  motion  and  marched  to  the  island?  The  same 
mental  affection,  the  same  potential  force,  the  same  alarm 


356  Mr.  Wirt's  Speech  on 

and  apprehension  which  had  acted  on  the  government  of 
Ohio?  What  was  it,  when  this  assemblage  fled  from  the 
island  and  advanced  down  the  river,  gathering,  like  a  snow 
ball  on  the  side  of  a  mountain,  magnitude  and  momentum 
as  it  rolled  along?  What  was  it  that  threw  the  city  of 
New- Orleans  into  dismay  and  consternation,  and  pro- 
duced the  movement  of  the  American  army  in  that  quar- 
ter for  its  defence? — Sir,  this  terror  and  alarm  arose  from 
the  designs  of  the  prisoner  and  his  party:  designs  which 
we  shall  prove  upon  them,  if  permitted.  And  contempti- 
ble in  point  of  numbers  as  the  party  under  Aaron  Burr 
may  appear,  it  will  be  shown  to  you,  sir,  that  the  United 
States  had  not  a  garrison  on  the  river,  nor  in  New-Orleans 
in  the  then  temper  of  that  city,  capable  of  resisting  the 
designs  of  the  prisoner.  These  are  facts  which  will  be  in 
proof  if  the  evidence  shall  go  on:  and  farthermore,  if  the 
accused  and  his  party  may  be  believed,  that  he  had  men 
engaged,  and  prepared:  to  join  him  at  the  motion  of  his 
finger,  in  sufficient  force  to  have  given  battle,  and  in  a 
better  cause,  successful  battle,  to  the  whole  army  in  the 
south.  This  threatened  power  did  not  indeed  rise  and 
show  itself;  the  unexpected  vigor  of  the  government,  and 
the  equally  unexpected  virtue  and  indignation  of  the 
country,  awed  diem  into  silence  and  kept  them  down. 
Upon  the  whole,  sir,  if  potential  force  be  required,  we 
shall  prove  it  in  this  case:  and  I  believe  it  is  by  this  time 
too  apparent  that  the  assemblage  on  the  island  had  every 
character  and  property  which  either  law  or  reason  require 
to  constitute  an  overt  act  of  levying  war. 

But  let  me  suppose  that  you  shall  think  otherwise;  to 
whom  does  it  belong  to  decide  whether  there  has  been  an 
overt  act  or  not?  What  did  you  yourself  decide  the  other 
day  upon  this  subject? 

"  Levying  of  war,  is  a  fact,  which  must  be  decided  by 
the  jury.  The  court  may  give  general  instructions  on  this, 


the  Trial  of  Aaron  Burr.  357 

as  on  every  other  question  brought  before  them,  but  the 
jury  must  decide  upon  it  as  compounded  of  fact  and  law. 
Two  assemblages  of  men  not  unlike  in  appearance,  pos- 
sibly may  be,  the  one  treasonable  and  the  other  innocent. 
If,  therefore,  the  fact  exhibited  to  the  court  and  jury, 
should,  in  the  opinion  of  the  court,  not  amount  to  the  act 
of  levying  war,  the  court  could  not  stop  the  prosecution — 
but  must  permit  the  counsel  for  the  United  States  to 
proceed  to  show  the  intention  of  the  fact,  in  order  to  ena- 
ble the  jury  to  decide  upon  the  fact,  coupled  with  the 
intention." 

In  strict  unison  with  this  opinion  is  the  English  law. 
1  Hale,  P.  C.  1  East,  67.  This  court  then  having  itself 
decided  that  the  question  whether  there  has  been  an  overt 
act  or  not,  belongs  exclusively  to  the  jury,  it  is  strange 
that  the  prisoner  should  persist  in  pressing  it  on  the 
court.  What  does  he  mean  by  it?  Such  an  anxious  per- 
severance in  this  course,  certainly  implies  a  reflection 
either  on  the  jury  or  the  court;  it  implies  his  belief,  either 
that  the  jury  will  not  do  him  justice;  or  that  the  court 
will  do  him  more  than  justice;  if  he  believed  that  the  jury 
would  do  him  justice,  and  wished  nothing  more,  he  would 
be  content  to  leave  his  case  to  the  jury:  if  he  believed 
the  jury  would  not  do  him  justice,  and  he  therefore  tries 
to  force  his  cause  before  the  court,  whether  they  will  or 
no,  I  may  truly  say  that  he  exhibits  a  phenomenon  un- 
precedented upon  this  earth;  a  man  flying  from  a  jury  of 
his  peers  to  take  refuge  under  the  wings  of  the  court. 
Sir,  I  can  never  think  so  ill  of  my  countrymen  as  to  be- 
lieve that  innocence  need  to  fly  from  them.  Nor  will  my 
respect  for  this  court  suffer  me  to  apprehend  for  a  mo- 
ment that  any  consideration  will  induce  them  to  invade 
the  peculiar  and  acknowledged  province  of  the  jury.  Sir, 
I  believe  that  my  respect  for  this  court,  personally  and 
officially,  is  too  well  known,  to  apprehend  that  remarks 


358  Speeches  on  General  Wilkinson's 

of  a  general  nature  will  be  applied  to  them.  But  if,  at 
this  period,  when  the  intellectual  power  and  illumination 
of  the  bench  is  so  universally  admitted,  a  precedent  be 
set,  by  which  the  great  facts  in  a  trial  for  life  and  death 
shall  be  wrested  from  the  jury  and  decided  by  the  bench 
— what  use  may  not  be  made  of  it  hereafter: — In  the 
fluctuations  of  party — in  the  bitterness  and  rancour  of 
political  animosity — some  tyrant  Brumley,  or  some  ruf- 
fian Jeffries  may  mount  the  bench! — can  the  soul  look 
forward,  without  horror,  to  the  dark  and  bloody  deeds  of 
death  which  he  might  perpetrate,  armed  with  such  a  pre- 
cedent as  you  are  now  called  on  to  set.  But  you  will  not 
set  it,  sir.  You  will  not  bring  your  country  to  see  an  hour 
so  fearful  and  perilous  as  that  which  shall  witness  the  ruin 
of  the  trial  by  jury.  I  shudder  to  reflect  what  might  be 
the  consequences  of  such  an  hour. 

I  have  finished  what  I  had  to  say,  sir:  I  thank  the  court 
for  its  patient  and  polite  attention.  I  am  too  much  ex- 
hausted to  recapitulate,  and  to  such  a  court  as  this  I  am 
sure  it  is  unnecessary. 


SPEECH  OF  MR.  HUGHES, 

ON  GEN.  WILKINSON'S  PROCEEDINGS  AT  NEW  ORLEANS. 

THE  extraordinary  measures  adopted  by  Gen.  Wilkin- 
son, in  New  Orleans,  for  the  avowed  purpose  of  defeat- 
ing the  treasonable  designs  imputed  to  Colonel  Burr,  pro- 
duced in  that  city,  and  generally  throughout  the  territory 
of  which  it  was  the  capital,  a  very  strong  sensation.  The 
subject  occupied  for  a  long  time  the  attention  of  the  local 
legislature.  Mr.  Hughes,  a  member  of  the  house  of  re- 
presentatives, proposed  that  a  joint  memorial  from  both 


proceedings  at  New  Orleans,  359 

branches  of  the  legislature,  should  be  sent  to  congress  to 
inform  them  of  these  proceedings  and  to  solicit  redress. 
The  memorial  was  as  follows:  we  give  it  at  length,  as  it 
will  enable  our  readers  more  fully  to  understand  and  ap- 
preciate the  speeches  made  in  its  support. 

MEMORIAL: 

To  the  Honourable  the  Senate  and  House  of  Representa- 
tives of  the  United  States,  in  Congress  assembled. 

Extraordinary  and  alarming  events,  oblige  the  le- 
gislative council  and  house  of  representatives  of  the  terri- 
tory of  Orleans,  to  appear  in  the  character  of  complainants, 
at  the  bar  of  your  honourable  body. 

Among  the  privileges  secured  to  us  by  the  treaty  of 
cession,  were  some  which  congress  thought  of  so  much 
importance,  that  they  hastened  to  bestow  them  as  an  ear- 
nest of  the  further  benefits  we  were  taught  to  expect.  We 
knew  how  to  appreciate  them;  and  read  with  satisfaction 
in  the  first  law  passed  for  our  government,  the  provision, 
that  "  the  inhabitants  of  the  said  territory,  shall  be  entitled 
to  the  benefits  of  the  writ  of  habeas  corpus.  They  shall  be 
bailable,  unless  for  capital  offences,  where  the  proof  is 
evident  or  the  presumption  great,  and  no  cruel  or  unusual 
punishment  shall  be  inflicted." 

Whenever  we  have  been  tempted  to  complain  that  other 
privileges,  deemed  by  us  essential,  were  withheld,  we  have 
been  reminded  of  former  periods  in  our  history,  when  li- 
berty was  only  a  tenancy  at  the  will  of  our  superiors,  and 
told  to  be  grateful  for  the  extension  of  a  remedy  against 
every  species  of  illegal,  personal  violence;  we  examined 
the  nature  of  this  provision,  and  saw  in  its  theory  an  ad- 
mirable contrivance  to  secure  the  liberty  of  the  citizen; 
we  enquired  into  its  operation,  and  found  that  its  practice 
had  produced  the  correspondent  effect;  and  we  considered 


360  Speeches  on  General  Wilkinson's 

this  assurance  of  personal,  as  the  first  step  to  political  in- 
dependence. 

Secured  from  the  dread  of  legal  punishment  by  a  deter- 
mination not  to  merit  it,  and  safe  in  the  protecting  power 
of  the  law  against  all  attacks  on  our  reputation  or  property, 
we  assumed  the  plain  but  lofty  port  oi  freedom,  and  looked 
forward  to  the  period  when  60,000  citizens,  who  had  by 
enjoying,  learned  to  appreciate  their  rights,  should  unite  in 
assuming  an  equal  rank  in  the  great federal  family-,  a  station 
to  which  "Nature  and  nature's  God,"  has  destined  them. 
Under  these  anticipations,  our  government  experienced 
another  change.  And  here  again  we  rejoiced  to  find  the 
invaluable  privileges  of  personal  security,  re-assured  with 
other  provisions  equally  important.  In  the  second  article 
of  the  ordinance,  it  is  declared  that  "the  inhabitants  of 
said  territory  shall  always  be  entitled  to  the  benefits  of  the 
writ  of  habeas  corpus  and  of  a  trial  by  jury — that  all  per- 
sons shall  be  bailable,  unless  for  capital  offences,  when 
the  proof  is  evident  or  the  presumption  great,  and  that  no 
man  shall  be  deprived  of  his  liberty  or  property,  but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land."  We 
view  with  admiration,  and  as  children  of  the  great  Ameri- 
can family,  claim  a  participation  in  the  benefits  of  the 
constitutional  provisions  contained  in  the  7th  and  8th 
articles  of  the  amendments  of  the  constitution,  a'  d  fear 
not  the  disapprobation  of  congress,  when  we  contend  that 
within  this  territory  "  no  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime,  unless  on  a  pre- 
sentment or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia,  when 
in  actual  service  in  time  of  war,  or  public  danger."  And 
that  in  all  criminal  productions  the  accused  "  shall  enjov 
the  right  to  a  speedy  and  public  trial  by  an  impartial  jury 
of  the  state  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  as 


proceedings  at  New  Orleans.  361 

certained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the  wit- 
nesses against  him;  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favour,  and  to  have  the  assistance 
of  counsel  for  his  defence." 

We  feel  a  grateful  pleasure  in  referring  to  these  constitu- 
tional bulwarks  erected  for  our  protection — an  honest  pride 
in  the  consciousness  that  we  have  not  rendered  ourselves 
unworthy  of  the  blessing — and  an  indignant  grief  which 
we  are  sure  your  honourable  body  will  participate,  in  the 
reflection  that  the  noblest  plan  ever  devised  for  the  pro- 
tection of  personal  liberty — the  finest  theory ;ever  imagined 
for  the  restraint  of  arbitrary  power,  should,  before  we  had 
well  seen  its  operation,  be  rendered  abortive;  that  the  best 
gift  offered  by  the  United  States  should  be  violently  torn 
from  our  grasp,  and  that,  while  its  constitutional  guardians 
looked  tamely  on,  the  holy  temple  of  justice  should  be 
sacrilegiously  rifled  of  this  revered  palladium  of  our  rights. 

The  annexed  documents  support  the  following  state- 
ment of  facts,  to  which  we  entreat  the  immediate  and  effi- 
cient attention  of  the  proper  branches  of  government. 

The  return  of  the  regular  forces  to  this  city  in 

last,  announced  to  us  the  settlement  of  our  differences  with 
Spain  upon  our  frontiers,  and  we  felt  grateful  to  those  who 
had  been  instrumental  in  tranquillizing  the  country.  But 
our  tranquillity  was  of  short  duration.  Measures  were  soon 
put  into  operation  which  filled  the  city  with  alarm,  and 
every  thinking  mind  with  the  apprehension  of  the  most 
sinister  events.  Very  active  preparations  were  made  for 
defence,  but  the  utmost  mystery  observed  as  to  the  cause; 
rumours  were  put  into  circulation  of  an  intent  to  proclaim 
martial  law;  and  the  old  forts  which  command  the  city 
were  repaired.  At  length,  when  a  sufficient  degree  of 
alarm  had  been  created,  the  merchants  of  the  city  were 
invited  to  convene  at  the  government  house  on  the       ■■ 

Vol.  II.  2  Z 


262  Speeches  on  General  Wilkinsons 

day  of  December  last,  and  many  of  them  attended.  They 
were  met  by  the  Governor  of  this  Territory,  and  Briga- 
dier General  Wilkinson.  The  latter  communicated  to 
them  that  the  preparations  then  making  were  to  oppose 
Col.  Burr,  who  had  formed  a  plan  to  sever  the  western  from 
the  Atlantic  states,  and  to  invade  the  province  of  Mexico. 
That  in  the  prosecution  of  these  objects,  he  would  himself 
be  at  Natchez,  with  two  thousand  men,  by  the  20th  of 
December,  and  would  soon  after  be  joined  by  a  body  of 
six  thousand  men.  That  with  this  force  he  would  march 
down  to  this  city,  take  possession  of  it,  plunder  the  banks, 
and  seize  the  shipping  to  transport  his  army,  under  con- 
voy of  a  British  fleet,  to  La  Vera  Cruz. 

This  information,  he  said,  he  had  received,  partly  by  a 
letter   from   Mr.   Burr  addressed  to   him  (the  General) 

written  in  cypher,  and  dated  the last,  and 

received  by  him,  at  Natchitoches,  on  the  16th  of  October 
last;  which  letter,  or  a  deciphered  copy,  he  produced; 
and  which)  among  other  things,  acknowledged  the  receipt 
of  one  from  the  general  of  the  6th  of  the  preceding  monthy 
and  asked  his  advice  as  to  the  propriety  of  taking  Baton 
Rouge  on  his  xuay  down.  Other  parts  of  the  plan,  not  con- 
tained in  the  letter,  he  stated  had  been  communicated  by 
a  messenger  from  Mr.  Burr,  who  had  been  sent  to  him 
at  Natchitoches. 

The  governor  supported  the  general  in  a  speech,  in 
which  he  stated  his  belief  in  the  existence  of  the  danger, 
and  read  a  letter,  which  he  said  was  anonymous,  but  the 
hand  writing  of  which  he  knew  to  be  that  of  a  respectable 
gentleman  in  Tennessee.  The  parts  of  this  letter  which 
were  read,  advised  him  to  beware  of  traitors — to  beware 
of  the  month  of  December — to  beware  of  the  Ides  of 
March — to  beware  of  the  general;  and  gave  hints  of  some 
design  against  the  city;  it  has  since  been  discovered  that 
this  letter  was  actually  signed  A.  Jackson ^  and  advised  the 


proceedings  at  JS'ew  Orleans.  363 

governor  to  beware  of  Wilkinson.  Both  the  general  and 
the  governor  united  in  recommending  an  embargo  on  the 
shipping,  as  a  measure  essential  to  the  general  safety;  the 
merchants  who  were  present  acquiesced  in  the  necessity, 
and  the  embargo  was  laid.  A  ship  of  war  was  immediately 
stationed  below  the  city  to  prevent  the  departure  of  any 
vessel  without  the  general's  passport,  and  some  which  had 
sailed  without  this  document,  were  brought  back  and  de- 
tained until  it  was  procured,  although  the  necessary  clear- 
ances from  the  custom-house  had  been  given;  and  we  be- 
lieve that  although  the  collector  has  not  since  the 

refused  the  papers  required  by  law,  no  vessel 


is  suffered  to  pass  the  fort  at  Plaquemine,  without  the 
general's  permission. 

Upon  the  illegality  of  this  embargo,  we  need  not  offer 
a  single  argument.  The  legislative  power  of  congress  alone 
could  legally  enforce  a  measure  of  this  nature.  Upon  its 
expediency,  many  considerations  occur.  Gen.  Wilkinson 
was  the  only  witness  of  Mr.  Burr's  treasonable  designs; 
he  stated  his  plan  to  embrace  the  attack  of  this  place,  the 
plunder  of  its  wealth  and  seizure  of  its  shipping;  and  in 
order  to  counteract  these  projects,  it  was  determined  to 
keep  all  the  shipping  in  the  harboidr,  to  deprive  them,  by 
enlisting  their  seamen,  of  all  hopes  of  escape,  to  detain  the 
treasures  of  the  banks,  and  by  withdrawing  all  the  out- 
posts, and  collecting  the  military  force  at  New  Orleans,  to 
leave  all  the  territory  open  to  the  invasion  of  the  enemy. 

We  do  not  pretend  to  be  judges  of  military  operations, 
but  on  a  point  so  essential  to  our  safety  as  the  defence 
of  our  territory,  and  so  important  to  the  union  as  the 
maintenance  of  its  tranquillity,  we  can  but  advert  to  the 
impropriety  of  keeping  the  regular  forces  insulated  in  this 
city,  and  withdrawing  the  garrisons  from  fort  Adams  and 
Natchitoches,  when  the  obvious  policy,  if  invasion  were 
apprehended,  would  have  been  to  have  met  it  in  the  de- 


364  Speeches  on  General  Wilkinson's 

files  of  the  upper  country,  aided  by  a  numerous  militia,  in- 
stead of  \:  aiting  an  attack  in  a  town  incapable  of  defence; 
or  if  the  attack  of  the  Spanish  dominions  were  meditated, 
to  have  occupied  the  garrisons  situated  on  their  frontier. 

The  embargo  was  a  serious  evil  to  our  country;  its  im- 
mediate operation  is  already  severely  felt  in  the  injury  of 
private  credit.  The  extent  of  its  consequences  cannot  be 
easily  calculated.  In  a  government  subject  to  events  like 
this,  commercial  operations  must  be  always  uncertain, 
confidence  must  be  destroyed,  and  the  price  of  insurance, 
and  uncertainty  of  returns,  will  always  damp  the  spirit  of 
enterprise,  enhance  the  price  of  imports,  and  lessen  that  of 
staple  commodities.  These  evils  are  already  felt.  The  ca- 
pitals about  to  be  invested  in  our  lands,  in  our  public  in- 
stitutions, and  in  loans  to  our  inhabitants,  are  suddenly 
withdrawn,  and  the  spirit  of  emigration  to  our  territory  is 
destroyed;  and  a  fall  of  at  least  twenty-five  per  cent,  in 
the  price  of  real  estates,  attests  the  misfortune  of  our 
country.  Measures  more  deeply  to  be  deprecated,  because 
they  struck  at  the  root  of  all  a  freeman  ought  to  value  in 
life- — measures  fortunately  unknown  in  the  history  of  the 
American  people,  and  which,  we  devoutly  pray,  may  be 
only  cited  hereafter  to  show  the  exemplary  punishment 
that  followed  their  adoption. 

On  Sunday  the  13th  of  December,  Doctor  Erick  Boll- 
man,  a  resident  and  house-holder  of  this  city,  %vas  arrest- 
ed by  two  military  officers,  under  the  command  of  briga- 
dier general  Wilkinson;  his  papers  were  seized — he  was 
denied  the  privilege  of  consulting  counsel — and  was  im- 
mediately hurried  out  of  the  territory.  Two  other  persons, 
(citizens  of  the  United  States,)  were  arrested  by  a  simi- 
lar order  and  confined  on  board  a  bomb-ketch,  opposite 
the  city.  For  some  days  neither  the  arrest  of  these  last 
persons,  nor  the  place  of  their  imprisonment,  were  suffi- 
ciently known  to  justify  any  judicial  steps  for  their  re- 


proceedings  at  New  Orleans*  365 

lease.  At  length  one  of  them,  (Mr.  Ogden)  remarkable 
for  his  height,  was  discovered  from  the  shore — a  proper 
affidavit  was  made,  and  a  habeas  corpus  obtained  [from 
judge  Workman,]  in  obedience  to  which,  and  contrary 
to  the  express  order  of  general  Wilkinson,  the  officer  of 
the  navy  in  whose  custody  he  was,  brought  him  before 
the  judge,  and  he  was  released.  The  other,  Mr.  Swart- 
wout,  was  immediately  removed  to  more  close  confine- 
ment, and  measures  were  taken,  by  frequently  changing 
the  officer  of  his  guard,  to  avoid  any  proper  return  to 
the  writ  issued  for  his  release. 

An  affidavit  of  the  arrest  of  Bollman  was  presented  to 
one  of  the  judges  of  the  superior  court,  on  the  afternoon 
of  the  14th  of  December,  together  with  the  writ  of  habeas 
corpus,  for  his  allowance;  and  it  was  urged  by  the  gen- 
tleman who  presented  it,  that  the  case  was  an  urgent  one 
— that  the  prisoner  would  probably  be  removed  out  of 
the  reach  of  process  by  the  next  day.  The  allowance  of 
the  writ  was  at  that  time  refused  by  the  honourable 
William  Sprigg,  senior  judge  of  the  superior  court, 
in  order,  as  he  alleged,  that  he  might  consult  his  col- 
league, and  he  not  being  at  home,  the  motion  for  the 
habeas  corpus  was  directed  to  be  made  in  open  court. 
On  the  following  day,  this  motion  appears  to  have  been 
made  by  Mr.  Alexander,  supported  by  Mr.  Livingston, 
both  counsellors  of  the  superior  court;  the  writ  was  al- 
lowed. On  Thursday  the  18th  of  December,  general 
Wilkinson,  to  whom  the  writ  was  directed,  made  his 
return,  in  which  he  set  forth: — 

The  undersigned,  commanding  the  army  of  the  United 
States,  takes  on  himself  all  responsibility  for  the  arrest 
of  Erick  Bollman,  on  a  charge  of  misprision  of  treason 
against  the  government  and  laws  of  the  United  States 
and  has  adopted  measures  for  his  safe  delivery  to  the 


366  Speeches  on  General  Wilkinson's 

executive  of  the  United  States.  It  was  after  several  con- 
sultations with  the  governor  and  two  of  the  judges  of 
this  territory,  that  the  undersigned  h*s  hazarded  this  step 
for  the  national  safety,  menaced  to  its  base  by  a  lawless 
band  of  traitors,  associated  under  Aaron  Burr,  whose  ac- 
complices are  extended  from  New  York  to  this  city.  No 
man  holds  in  higher  reverence  the  civil  institutions  of 
his  country  than  the  undersigned,  and  it  is  to  maintain 
and  perpetuate  the  holy  attributes  of  the  constitution 
against  the  uplifted  hand  of  violence,  that  he  has  inter- 
posed the  force  of  arms  in  a  moment  of  extreme  peril, 
to  seize  upon  Bollman,  as  he  will  upon  all  others,  without 
regard  to  standing  or  station,  against  whom  satisfactory 
proof  may  arise  of  a  participation  in  the  lawless  combi- 
nation. 

(Signed)  JAMES  WILKINSON. 

After  thus  avowing  his  breach  of  the  constitution  and 
laws  of  his  country,  and  declaring  to  the  judges,  sitting 
in  their  official  capacity,  that  he  would  persevere  in  the 
same  lawless  course,  he  proceeded  to  denounce  the  two 
counsellors  who  had  dared  to  question  his  proceedings; 
He  demanded  their  immediate  arrest — but  though  re- 
peatedly urged,  by  the  one  who  was  present,  to  substan- 
tiate his  charge,  and  though  every  effort  since  that  period 
has  been  made  by  the  gentleman  accused  to  provoke 
enquiry  into  his  conduct,  we  do  not  find  that  any  proof 
whatever  has  been  produced  to  criminate  him;  and  we  are 
therefore  constrained  to  believe  that  this  denunciation 
was  intended  to  overawe  those  who  might  be  inclined  to 
extend  their  professional  aid  to  the  general's  victims. 

This  deduction  derives  additional  force  from  the  pro- 
ceedings afterwards  pursued  with  respect  to  Mr.  Alex- 
ander. On  the  following  day  he  was,  by  virtue  of  a  mili- 
tary order  signed  by  general  Wilkinson,  arrested  in  his 


proceedings  at  New  Orleans.  367 

house,  and  conveyed  through  the  streets  at  noon-day 
under  a  strong  escort  of  dragoons;  he  was  paraded 
through  the  principal  streets  in  the  city,  exposed  to  the 
pitying  gaze  of  hundreds  of  the  astonished  inhabitants, 
and  committed  to  close  confinement  at  head  quarters. 
From  thence,  with  Mr.  Ogden,  who  was  a  second  time 
arrested,  he  was  conveyed  to  some  place  then  unknown. 
There  is,  however,  unquestionable  proof  that  on  the  22d 
of  January  they  were  in  confinement  at  Plaquemine. 

The  habeas  corpus  in  the  case  of  Bollman  is  the  only 
one  which  was  issued  from  the  superior  court  in  these 
cases  of  military  arrest;  the  effect  of  that  was  rendered 
abortive  by  the  alleged  removal  of  the  prisoner. 

The  other  cases  were  prosecuted  in  the  county  court, 
where  James  Workman,  esquire,  presided.  The  history 
of  those  cases  and  the  reasons  why  they  were  rendered 
ineffectual  are  contained  in  a  report  made  by  that  officer 
to  this  house.  That  document  demands  the  serious  at- 
tention of  the  national  legislature;  and  the  tacit  refusal  of 
the  governor  of  this  territory,  to  give  effective  energy  to 
the  civil  authority,  will  no  doubt  be  examined  by  the 
executive  of  the  union. 

The  picture  however  of  our  sufferings,  degradations 
and  injuries,  is  not  yet  complete.  We  have  seen  the  ci- 
tizen imprisoned,  and  his  advocates  dragged  from  the 
bar,  denounced,  imprisoned  and  banished;  the  violation 
of  the  sacred  seat  of  justice  itself  was  still  wanting  to 
give  a  finish  and  colouring,  a  glow  of  intense  guilt  to  the 
group.  This  it  received,  for  Mr.  Workman,  a  few  days 
after  his  communication  was  made  to  this  house,  was 
himself  arrested,  dragged  to  the  guard  house  and  im- 
prisoned with  Mr.  Kerr  (another  gentleman  of  the  bar. 
who  had  taken  out  the  habeas  corpus  for  Ogden,)  until 
they  were  released  by  the  prompt  interposition  of  the 
district  judge  of  the  United  Slates.  We  do  not  mean  to 


368  Speeches  on  General  Wilkinsons 

be  understood  as  vouching  for  the  innocence  or  guilt  of 
the  several  persons  whom  the  commander  in  chief  of  the 
American  army  has  arrested.  It  is,  however,  somewhat 
unfortunate  that  the  guilt  of  none  of  the  victims  he  has 
chosen  from  the  bar  or  the  bench  was  ever  discovered 
until  they  had  distinguished  themselves  by  doing  their 
duty  in  opposition  to  his  tyrannical  designs. 

In  order  to  prevent  all  escape  from  scenes  so  full  of 
horror,  so  degrading  to  an  American,  so  ruinous  in  their 
consequences,  and  so  disgraceful  to  those  whose  duty 
it  was  to  protect  us  against  them,  guards  were  placed 
above,  and  forts  and  garrisons  below  the  town — all  tra- 
vellers were  stopped,  searched,  imprisoned  unless  pro- 
vided with  passports;  and  the  citizens  of  this  territory 
in  passing  quietly  through  their  neighbourhood  were  not 
only  stopped,  but  fired  upon,  by  order  of  general  Wil- 
kinson. Innocent  travellers  from  a  remote  part  of  the 
country  have  been  forced  to  return  one  hundred  miles  to 
procure  this  license  to  travel  in  their  own  country. 

This  order  has  been  enforced  even  against  a  member 
of  this  house,  whose  person  was  imprisoned  until  he  had 
suffered  an  illegal  examination  of  his  private  papers. 

Though  nothing  can  justify,  yet  circumstances  of  ex- 
treme danger  in  the  moment  of  invasion  during  the  sus- 
pension of  the  civil  authority,  might  excuse  some  of 
these  violent  measures. — But  here  no  foreign  enemy  or 
open  domestic  foe  was  then,  or  has  yet  been  proved  to 
have  been  within  any  perilous  distance  of  this  ciry,  or 
that  treason  lurked  within  our  walls. — Nay,  there  yet  ex- 
ists, within  our  knowledge,  no  proofs  of  any  treasonable 
designs  sufficiently  organized  and  matured  to  give  us 
any  reasonable  cause  to  fear  for  our  safety.  The  courts 
were  open  to  punish,  juries  to  try,  and  officers  ready  to 
enforce  the  civil  authority  in  all  cases  of  conviction.  If 
reasonable  doubts  could  be  entertained  of  any  want  of 


proceedings  at  New  Orleans.  369 

energy  in  the  civil  authority,  the  military  was  at  hand  to 
aid  its  operations — but  this  ancilliary  process  did  not  suit 
the  views  of  the  commander;  his  ardent  zeal  could  not 
brook  "  the  law's  delay,"  his  promptitude  to  support 
"  the  holy  attributes  of  the  constitution"  would  admit  of 
no  stay  to  his  uplifted  arm;  and  though  by  an  union  of 
mockery  with  violence,  in  many  of  the  cases  he  began 
by  an  application  to  the  courts  and  to  juries,  yet  his  im- 
patience always  snatched  his  victims  before  they  had 
time  to  deliberate  on  the  accusations  he  pretended  to 
make. 

Again  we  repeat  to  your  honourable  body,  that  we  do 
not  forget  our  department  so  far  as  to  pronounce  on  the 
alleged  guilt  or  presumable  innocence  of  the  victims  of 
his  violence.  But  we  must  be  permitted  to  remark  that 
in  either  case  the  proceedings  are  illegal,  oppressive,  and 
inhuman. 

Thu6  we  have  briefly  stated,  with  as  few  reflections  as 
the  nature  of  the  case  would  admit,  the  acts  of  high  hand- 
ed military  power  to  which  we  have  been  and  are  yet  are 
exposed — acts  too  notorious  to  be  denied,  too  illegal  to 
be  justified,  too  wanton  to  be  excused — We  have  alluded 
to,  but  cannot  fully  describe  the  humiliating  situation  to 
which  they  have  reduced  us.  Never  would  we  have  sub- 
mitted to  it,  if  the  aid  had  been  afforded  by  those  branches 
of  government  whose  duty  it  was  to  have  protected 
our  rights,  to  have  resisted  oppression,  and  to  have  rallied 
us  around  them  on  the  first  assumption  of  illegal  power 
— at  the  head  of  these  branches  are  men  not  appointed  by 
us — over  whom  we  have  no  control,  and  who  are  amena- 
ble only  to  congress  for  their  conduct.  We  pray  that  that 
conduct  may  be  strictly  examined  into,  and  that  nothing 
connected  with  this  extraordinary  state  of  things  may  be 
concealed — We  annex  to  this  memorial  a  message  from 
our  governor,  by  which  we  are  invited  to  a  temporary 

Vol.  II.  3  A 


370  Speeches  on  General  Wilkinson's 

suspension  of  the  writ  of  habeas  corpus — a  compliance 
with  which  we  conceive  would  involve  the  violation  of 
our  oaths,  the  ordinance  and  constitution  of  our  country, 
and  without  the  semblance  of  necessity  lend  our  authority 
to  cover  the  unconstitutional  proceedings  of  which  we 
complain. 

Our  great  distance  from  the  seat  of  government  renders 
oppression  more  bold  by  the  hope  of  impunky — our 
scattered  population  takes  away  all  fear  of  resistance — 
the  ease  with  which  men  in  office  can  procure  testimony, 
or  influence  opinion  in  their  favour,  makes  conviction 
more  difficult — and  the  necessity  of  keeping  up  a  large 
military  force,  will  long  expose  us  to  a  repetition  of  the 
evil — but  all  these  considerations  will,  we  are  convinced, 
have  the  effect  of  rendering  the  proper  branches  of  our 
government  more  watchful  over  the  conduct  of  their  offi- 
cers, and  we  rely  with  confidence  on  the  energy  of  the 
executive  to  remove,  on  the  vigilance  of  the  representa- 
tives to  accuse,  and  the  justice  of  the  senate  to  punish 
the  officers  who  shall  be  found  to  have  disregarded  their 
duty. 

The  memorial  being  read,  a  motion  was  made  that  it 
be  recommitted. — Upon  this  motion  the  following  ani- 
mated and  eloquent  speech  was  delivered  by  Mr.  Hughes. 

Mr.  Chairman, 

I  am  astonished,  that  the  gentleman  from  Acadia, 
or  indeed  any  other  in  this  house,  could  have  the  bold- 
ness to  rise  and  support  a  motion  for  the  recommitment 
of  the  memorial  now  under  the  consideration  of  this 
house;  when  I  reflect,  sir,  that  the  same  memorial  lias 
been  handed  about  from  one  committee  to  another,  one 
of  which  committees  the  gentleman  himself  was  a  mem- 
ber for  at  least  forty  days.  That  committee  was  discharg- 
ed, and  another  appointed  in  its  stead,  and  now  upwards 


proceedings  at  New  Orleans.  371 

of  twenty  days  have  elapsed,  the  memorial  is  brought 
forward  for  consideration,  and  the  gentleman  has  the 
good  conscience  to  propose  the  postponement  of  its  con- 
sideration. I  am  in  hopes  the  proposition  will  have  no 
effect,  and  meet  the  opposition  it  justly  merits.  And  now 
I  am  up,  if  I  am  in  order,  I  will  make  some  general  re- 
marks on  the  extraordinary  occurrences  which  produced 
the  memorial.  They  will  be  such  I  believe  as  no  person 
in  this  house  will  find  easy  to  refute. 

Instead  of  hearing  the  memorial  submitted  by  your 
committee,  termed  a  libel,  I  expected  to  have  heard  it 
applauded  for  the  temperance  and  mildness  of  its  lan- 
guage; instead  of  hearing  it  asserted  that  it  contained 
charges  unfounded  and  malicious,  I  was  myself  prepared 
to  accuse  the  committee  of  having  overlooked  many  im- 
portant causes  of  complaint,  and  I  was  even  tempted  to 
offer  proofs  of  some,  to  be  added  by  way  of  amendment 
to  the  report.  I  confess,  Mr.  Chairman,  that  I  look 
around  me  with  astonishment — that  I  doubt  the  evidence 
of  my  senses,  when  I  hear  conduct,  such  as  that  of  which 
we  complain,  palliated  or  excused;  and  I  would  rather 
bear  the  idea  that  a  temporary  insanity  had  assailed  me, 
than  be  forced  to  the  mortifying  certainty,  that  these  pal- 
liations, these  excuses,  the  mean,  humbling,  half  justifi- 
cations, of  arbitrary  power,  have  been  asserted  by  Ame- 
ricans, in  a  free  deliberative  assembly; — Free  assembly! 
pardon  me,  Mr.  Chairman,  the  unguarded  expression;  it 
is  the  bitterest  irony  in  our  situation.  Are  you  safe,  sir, 
in  your  chair?  Are  either  of  us  in  our  seats  free  from  the 
fear  of  actual  violence?  The  sword  of  power  is  waved 
over  our  heads — the  bayonets  of  military  despotism  are 
at  your  door,  and  the  adoption  of  that  memorial  may  be 
the  signal  for  your  immediate  seizure,  banishment  or 
death!  And  pray,  sir,  to  what  quarter  will  you  look  for 
protection?  To  the  executive  of  the  territory?  It  is  worse 


372  Speeches  on  General  Wilkinson 's 

than  palsied — it  is  actually  enlisted  in  the  service  of  your 
oppressor!  To  your  constituents?  Your  tame  submission 
to  these  outrages — your  wretched  time-serving  delays — 
the  want  of  character  and  energy  we  have  for  two  long 
months  displayed, — have  destroyed  all  confidence  in  us, 
or  sympathy  for  our  sufferings.  But  there  is  no  danger; 
the  storm  has  blown  over;  the  clouds  are  dispersed,  and 
we  are  now  to  enjoy  the  full  sunshine  of  liberty  and  peace. 

But  what  security  have  we  that  the  momentary  calm 
will  last?  It  is  true  that  for  two  or  three  weeks  past,  wc 
have  not  seen  any  of  our  constituents  dragged  from  their 
families  or  friends;  that  the  guard  which  insulted  even 
members  of  this  house,  and  violated  its  privileges,  is 
withdrawn;  that  a  citizen  may  now  ride  a  few  miles  out 
of  the  city  without  having  his  pockets  searched,  and  the 
secrets  of  his  friends  and  family  exposed  to  the  insulting 
scrutiny  of  a  subaltern;  that  defenceless  women  and  chil- 
dren are  no  longer  made  prisoners  of  state;  and  that  the 
business  of  the  court  is  no  longer  confined  to  the  nugatory 
writs  of  Iiabeas  corpus,  or  the  reception  of  insulting 
returns. 

But,  sir,  these  scenes  were  attended  with  a  thousand  ag- 
gravating circumstances,  which  have  but  just  passed  be- 
fore our  eyes; — and  what  seourity  have  you,  I  repeat,  that 
they  will  not  be  renewed?  The  same  force  that  was  em- 
ployed, the  same  tyranny  that  directed  it,  are  yet  in  your 
city.  An  eye  is  kept  over  all  your  proceedings:  every 
word  uttered  here  is,  I  most  religiously  believe,  carried 
to  your  oppressor;  and  upon  his  wiil  alone  depends  our 
future  fate.  We  know  this;  we  feel  ii,  arid  yet  we  do  not 
blush  to  say  we  are  free!  No,  sir,  we  are  not  free;  and 
our  constituents  will,  I  hope,  ascribe  to  iear,  and  nothing 
but  fear,  the  event  which  I  anticipate  wich  mortification 
and  horror,  when  a  majority  of  the  member  s  of  this  house 
shall  reject  that  memorial;  and  when  that  s*ame  majority 


proceedings  at  Nexv  Orleans.  373 

shall  adopt  in  its  stead,  an  address,  excusing,  palliating, 
or  even  justifying  the  conduct  that  has  wantonly  destroy- 
ed your  constitution,  and  impudently  violated  your  laws; 
when  we  shall  crawl  in  the  dust  beneath  the  feet  of  our 
oppressor,  and  show  the  weakness,  but  surpass  the  for- 
bearance of  the  poor  reptile  that  turns  when  trodden  on. 

Sir,  will  it,  can  it  be  said,  that  real  or  apparent  danger 
rendered  this  conduct  necessary?  If  I  am  answered  in 
the  affirmative,  I  say  the  assertion  is  a  libel  on  our  con- 
stituents; I  will  never  sanction  it  by  my  voice.  What 
sir!  was  the  political  body  so  contaminated  here,  that 
justice  could  not  be  administered?  Where  were  the  trai- 
tors? Have  they  fled  from  justice?  Have  they  made  their 
escape  from  this  city?  Why  are  they  not  now  dragged 
to  justice?  Why  are  their  names  concealed  from  an  in- 
dignant public?  Because  neither  treason  nor  traitors  ex- 
isted in  the  country  thus  calumniated!  Because  the  idea 
originated  only  in  the  mind  of  a  man,  who  wanted  by  the 
excess  of  a  new-born  zeal,  to  cover  the  suspicions  of 
guilt;  and  who  hoped  to  stop  the  investigation  of  his  own 
conduct,  by  magnifying  the  danger  from  which  he  wish- 
ed to  have  us  believe  his  services  had  delivered  us! 

The  letters,  the  papers,  and  the  persons,  nay  even  the 
private  conversations  of  the  inhabitants  of  this  territory, 
have  for  three  months  been  under  the  absolute  control  of 
the  public  officers.  If  treason  had  existed  in  this  territo- 
ry, it  would  in  vain  have  endeavoured  to  escape  detec- 
tion— If  the  people  were  so  disaffected,  that  they  were 
ready  to  snatch  the  culprit  from  the  hands  of  justice — if 
the  judges  could  not  be  trusted  to  commit,  nor  juries  to 
pronounce  on  the  guilt  of  the  delinquents,  surely  with 
such  means,  and  so  inquisitorially  exercised,  some  evi- 
dence of  the  fact  would  have  been  produced;  some 
document,  some  declaration,  some  bottle  conversation; 
—some  confidential  communication  would  have  been 


374  Speeches  on  General  Wilkinson' *s 

drawn  forth  from  the  secrecy  in  which  friendship  and 
honour  had  buried  them,  to  bear  testimony  of  guilt,  or  at 
least  to  justify  suspicion. 

I  therefore  repeat,  and  so  long  as  my  feeble  voice  can 
be  heard,  I  will  continue  to  proclaim,  that  our  constitu- 
ents have  been  vilely  calumniated,  as  well  as  cruelly  op- 
pressed; that  insult  has  been  added  to  injury;  and  that 
their  imaginary  disaffection  has  been  slanderously  alleged 
as  an  excuse  for  their  real  oppression.  Away  then,  sir, 
with  the  degrading  excuse  derived  from  domestic  treason 
or  disaffection.  It  is  one  that  will  surely  find  no  favour 
with  the  executive  of  the  United  States,  who  has  borne 
honourable  testimony  to  the  readiness  with  which  the 
force  of  the  territory  was,  in  a  moment  of  danger,  offered 
to  support  the  union;  nor  will  it  be  believed  here,  when 
we  have  seen  our  most  respectable  citizens  performing 
the  drudgery  of  garrison  duty,  and  condescending,  even 
on  the  mere  allegation  of  the  general,  to  undertake  the 
task  of  executing  orders  odious  in  themselves,  and  which 
I  am  sure  must  have  been  doubly  disagreeable  to  them, 
both  as  free  citizens,  and  men  of  respectability  in  society. 

If  there  was  no  danger  from  domestic  insurrection, 
did  any  pressing  peril  from  without,  threaten  us  with 
such  immediate  destruction,  that  no  time  was  given  to 
deliberate,  or  consult  the  constitutional  organs  of  accusa- 
tion? From  whence  did  it  arise?  We  have  been  told  but 
of  one  quarter  from  whence  any  was  expected!  yet  it  is 
extremely  difficult  to  reconcile  the  existence  of  any  such 
danger,  with  the  measures  pursued  to  avoid  it.  If  the 
commander  in  chief  of  the  American  forces  was  really  in 
earnest,  when  he  told  us  Burr  was  expected  at  Natchez 
on  the  20th  December,  with  2000  men,  would  he  have 
dismantled  Fort  Adams?  would  he  have  endeavoured  to 
weaken  the  Mississippi  territory,  by  demanding  500  men 
from  thence,  to  be  brought  to  this  place?  would  he  have 


proceedings  at  New  Orleans.  375 

thrown  his  whole  force  into  a  defenceless  town,  and  left 
the  whole  upper  country  open  to  invasion?  and  would  he, 
I  ask  it  seriously,  and  pray  his  advocates  in  this  house  to 
give  a  satisfactory  answer — would  he  have  concealed  his 
knowledge  of  the  danger  from  the  governor  of  the  country 
which  was  to  be  the  first  invaded?  of  that  in  which  the 
force  was  to  have  been  collected?  Would  he  not  instantly 
have  requested  governor  Meade  to  put  himself  on  his 
defence?  would  he  not,  instead  of  endeavouring  to  weak- 
en that  territory,  by  a  requisition  of  militia,  have  marched 
there  with  his  regular  force,  and  thus  checked  the  first 
effort  of  rebellion?  or  would  he  not  have  nipped  it  in  its 
bud,  by  sending  a  copy  of  his  cypher  letter  to  the  gover- 
nor of  Kentucky,  before  any  force  could  possibly  have 
been  embodied?  Or  while  the  juries  of  the  upper  states 
and  territories  were  groping  in  the  dark,  and  for  want  of 
proof  pronouncing  the  mighty  culprit  innocent — would 
he  not  have  furnished  that  evidence  which  he  had  in  his 
possession,  and  which  would  have  exposed  the  traitor 
himself  and  his  schemes  to  detestation  and  ruin? 

If  the  object  of  Mr.  Burr  was  to  plunder  this  place  of 
its  wealth,  and  to  seize  on  its  shipping,  would  he,  I  ask, 
have  laid  an  embargo  to  keep  both  within  his  reach?  If 
he  had  not  had  some  other  scheme  than  mere  defence 
against  this  northern  rebellion,  would  he  have  expended 
the  treasure  of  the  public,  in  erecting  fortifications  in  the 
centre  of  your  city,  useless  against  a  foreign  foe — effi- 
cient only  to  overawe  your  citizens,  and  to  ruin  their  pro- 
perties in  its  suburbs?  Would,  in  fine,  the  naval  force 
have  been  stationed  along  the  river  in  small  detachments? 
or  would  they  not  have  been  collected  so  as  to  act  with 
some  advantage  against  the  descending  force? — It  is  no- 
torious that  at  the  moment  when  he  announced  the  great- 
est danger,  of  the  four  gun  boats  in  the  river,  only  two 
were  stationed  as  high  up  as  Point  Coupee,  and  the  twe» 


37ti  Speeches  on  General  Wilkinson* $ 

others  at  long  intervals  on  the  river,  so  that  they  might 
successively  have  been  taken,  if  half  the  supposed  force 
had  descended  with  the  hostile  army;  and  is  it  possible 
to  suppose,  that  if  the  object  had  been  to  interrupt  the 
invasion  of  Mexico,  that  no  part  of  the  naval  force  should 
have  been  stationed  above  Red  river,  and  that  Nachitoches 
would  have  been  left  almost  without  a  garrison? — It  is 
plain,  therefore,  from  these  acts,  from  these  omissions, 
from  these  arrangements,  that  no  serious  danger  was  ap- 
prehended— but  that  for  purposes  best  known  to  the  ge- 
neral himself,  and  his  coadjutors,  it  was  deemed  neces- 
sary to  keep  up  the  alarm;  to  divide  and  weaken  the 
country;  to  curb  the  town;  to  keep  all  its  wealth  in  his 
power;  to  scatter  the  naval,  and  render  the  military  force 
useless;  to  magnify  the  force  of  the  enemy,  and  to  terrify 
the  executive,  the  legislature,  and  the  judiciary  into  a 
dereliction  of  their  rights.  With  the  first,  unfortunately, 
4he  has  succeeded;  the  last  remain  yet  at  their  posts,  and 
this  day  is  to  determine  whether  we  are  to  partake  the 
disgrace  of  the  one,  or  share  in  the  credit  due  to  the 
other!  for  let  us  not  deceive  ourselves  as  to  the  effect 
which  our  approbation  of  these  measures,  or  even  our 
silence,  will  produce.  A  sacred  trust  has  been  committed 
to  our  keeping;  personal  honour,  national  dignity,  and 
the  solemn  sanction  of  an  oath,  concur  in  pointing  out 
our  duty.  Should  we  betray  this  trust;  should  we  disre- 
gard what  we  owe  to  ourselves,  our  country,  and  our 
God;  should  we  be  bold  enough  to  bear  the  reproaches 
of  that  internal  monitor,  which  no  sophistry  can  refute, 
no  pretended  necessity  silence,  no  power  overawe;  should 
we  have  the  hardihood  to  do  this,  I  ask,  can  the  boldest 
of  us  meet  his  constituents  with  composure,  before  they 
appear  at  their  tribunal?  The  effects  of  this  vain  terror, 
if  it  ever  possessed  their  minds,  will  be  dissipated.  When 
we  render  an  account  of  this  winter's  transactions,  will 


proceedings  at  New  Orleans.  377 

they,  I  say,  be  satisfied  with  our  list  of  divorces?  with 
our  militia  arrangements?  or  even  with  our  grand  reforms 
in  the  judiciary,  if  they  should  be  effected?  No,  sir,  they 
will  inquire  of  us  about  events  which  more  nearly  con- 
cern them;  they  will  inquire  of  their  violated  rights  they 
will  ask  about  their  constitution,  committed  to  our  care; 
and  in  a  stern  accent,  in  which  the  voice  of  the  people 
must  appear  to  us  the  voice  of  God,  they  will  demand 
whether  we  did  not,  in  his  awful  presence,  swear  that  we 
would  preserve  that  constitution  inviolable  for  ever? — 
They  will  then  point  to  the  open,  avowed,  undisguised 
infractions  it  has  received  in  our  presence;  before  our 
eyes;  in  our  own  persons;  in  the  very  sanctuary  of  our 
legislature;  and  ask  us  what  measure  we  took  to  preserve 
the  constitution?  what  steps  to  avenge  the  injuries  it  re- 
ceived?— What  answers  shall  we,  can  we  give  to  those 
inquiries?  Shall  we  reply,  "  It  is  true  we  have  sworn  to 
preserve  your  constitution  and  rights;  it  is  true  we  have 
seen  them  openly  violated  and  despised;  we  saw  the 
commerce  of  your  country  endangered;  its  citizens  drag- 
ged disgracefully  through  the  streets,  first  to  a  military 
dungeon,  then  to  banishment  and  ruin;  it  is  equally  true 
we  saw  the  peaceful  traveller  stopped  on  the  highway, 
searched  like  a  felon,  and  forced  by  violence  to  ask 
protection  in  passports,  unknown  and  unauthorised  by 
our  laws;  that  private  papers  have  been  seized,  private 
letters  examined;  that  women  and  children  have  suffered 
imprisonment,  exposed  to  cold  and  hunger;  that  our  own 
privileges  have  been  infringed;  that  our  own  dignity  has 
been  destroyed;  that  our  country  has  been  slandered; 
that  your  known  loyalty  has  been  questioned;  and  that 
your  representatives  have  been  insulted  by  a  solemn  pro- 
position to  violate  their  oaths,  and  join  in  the  unholy 
work  of  destruction!"  All  this,  we  must  proceed  to  say, 
we  beheld  with  tame  submission,  all  this;  some  of  it 
Vol.11.  3B 


376  Speeches  on  General  Wilkinson's 

countenanced  and  admitted;  and  when  solemnly  called 
by  the  indignant  voice  of  our  country,  to  express  in  our 
legislative  capacity,  the  feelings  which  ought  to  glow  in 
the  breasts  of  freemen,  we  excused  these  illegal  aets;  we 
palliated  these  enormities;  we  threw  the  mantle  of  legis- 
lation upon  the  nakedness,  the  folly,  the  vice  of  executive 
acts.  Though  we  could  not  lessen  the  horror  so  conside- 
rably felt,  we  meanly  undertook  to  divide  the  odium: — 
we  humbled  ourselves  in  the  presence  of  a  petty  officer, 
and  terrified  by  the  bayonets  of  a  single  regiment,  we 
kissed  the  rod,  and  justified  the  reproach  of  your  ene- 
mies, by  our  mean  submission  and  flattery,  that  "  you 
are  not  Jit  to  be  free!" 

Shall  we  be  obliged  to  make  this  humiliating  confes- 
sion? No,  sir,  it  is  yet  in  our  power  to  retrieve  the  cre- 
dit we  have  lost — to  assume  the  character  that  befits  us 
— to  address  the  legislature  of  our  country  in  the  lan- 
guage of  manly  freedom — to  show  to  the  executive  how 
much  he  has  been  deceived  and  betrayed,  by  the  civil 
and  military  chiefs;  and  to  give  him  an  opportunity  of 
dismissing  the  weakness  that  degrades,  and  the  tyranny 
that  ruins  his  service  in  this  territory.  And  yet,  sir,  it  is 
principally  for  our  own  credit,  that  we  ought  to  seize  this 
occasion  of  showing  that  we  are  not  the  unworthy  repre- 
sentatives of  a  patriotic  people.  For,  whatever  ideas  we 
may  have  of  our  duty,  the  representatives  of  the  United 
States  will  know  their's;  though  we  may  be  silent,  they 
will  speak;  they  are  fearless,  though  we  may  tremble;  and 
should  we  flatter,  they  will  never  cringe; — and  next  to 
the  consolation  cf  hiving  done  my  own  duty,  I  find  one 
in  the  certainty  th  it  there  are  at  least  one  hundred  and  thir- 
teen independent  men  in  our  councils,  who  have  remem- 
bered their  oaths,  and  will  punish  the  betrayers  of  their 
country. 


proceedings  at  JVezv  Orleans.  379 


BR.  W ATKINS'S  SPEECH 

on  tf1e  same  subject. 
Sir, 

I  OPPOSK  the  gentleman's  motion  for  recommitment. 
I  consider  it  a  subterfuge  to  get  rid  of  the  memorial  al- 
together; and  I  am  warranted  in  saying,  from  the  conduct 
of  that  gentleman  and  his  friends,  that  if  you  consent  to 
his  wish,  the  memorial  will  never  more  make  its  appear- 
ance in  this  house. — The  gentleman  says  it  contains  er- 
rors. If  so,  and  he  or  any  other  member  will  give  him- 
self the  trouble  to  point  them  out,  they  can  be  corrected 
in  a  committee  of  the  whole  house,  as  well  and  as  expe- 
ditiously as  in  any  other  way.  I  am  disposed  to  believe 
that  there  mav  be  some  few  errors,  but  thev  are  of  a  tri- 
fling  nature,  and  not  calculated  to  affect  the  body  of  the 
memorial  in  any  material  or  important  point.   I  have  too 
great  a  respect  for  the  constituted  authorities  of  my  coun- 
try, too  much  regard  for  the  character  of  this  house,  and 
too  high  a  reverence  for  the  dignity  of  that  tribunal  to 
whose  justice  we  are  about  to  appeal,  ever  to  consent  that 
your  memorial  shall  be  disgraced  by  one  doubtful  fact, 
or  one  disrespectful  expression;  and  I  have  too  much 
regard  for  my  own  reputation,  to  suffer  myself  to  be 
guided  by  any  other  principle  than  that  of  truth;  by  any 
other  motives  than  those  whose  object  is  the  public  wel- 
fare. If,  sir,  the  gentleman's  motion  should  fail,  I  shall 
propose  such  alterations  as  in  my  opinion  ought  to  be 
made  in  the  memorial,  when  it  comes  to  be  discussed  by 
paragraphs.  But  when  I  take  a  view  of  the  conduct  of 
this  house;  when  I  advert  to  the  extraordinary  and  un- 
precedented proceedings  which  took  place  this  morning 
of  attempting  to  thrust  the  memorial  out  of  doors^  with- 


380  Speeches  on  General  Wilkinson's 

out  even  suffering  it  to  be  read,  I  am  compelled  to  be- 
lieve it  is  the  object  of  that  gentleman  and  his  friends, 
not  only  to  reject  it,  but  to  avoid,  if  possible,  any  discus- 
sion on  the  subject.  Under  these  circumstances  I  shall 
avail  myself  of  the  present  opportunity  to  make  some 
observations  on  the  memorial  itself. 

It  will  be  recollected,  sir,  that  I  suggested  the  propri- 
ety of  such  a  measure  at  the  beginning  of  your  session. 
I  thought  it  proper  to  transmit  to  the  general  government 
a  faithful  narra'ive  of  the  principal  events  in  the  political 
history  of  our  country  a  few  weeks  previous  to  that  time. 
The  same  opinion   seemed  then  unanimously  to  prevail 
in  this  house;  and  a  committee  was  accordingly  appoint- 
ed to  draw  up  a  memorial  to  congress.   I  was  solicitous 
for  the  memorial  to  go  on  at  that  time  for  several  reasons. 
In  the  first  place  it  would  have  found  congress  in  session, 
and  as  all  communication  between  the  individuals  of  this 
country  and  the  Atlantic  states,  had  been  intercepted  by 
your  rulers,  who  seemed  desirous  of  usurping  the  em- 
pire of  thought  as  well  as  that  of  law,  I  deemed  it  expe- 
dient that  the  representatives  of  the  people  should  endea- 
vour to  defend  the  honour  and  interests  of  their  country, 
by  presenting  to  the  general  government  a  faithful  picture 
of  their  situation.   It  cannot  be  denied  but  at  that  time  it 
Was  dangerous  for  a  private  citizen  to  express  any  senti- 
ment in  opposition  to  the  measures   of  the   day.   It  will 
not  be  denied  but  that  even  upon  this  floor,  (except  when 
vour  doors  were  closed)  no  member  had  courage  enough 
to  condemn  the  conduct  of  general  Wilkinson.  However 
conscious  he  might  be  of  his  own  innocence;  however 
high  his  bosom  might  glow  with  patriotism,  and  however 
great  his  indignation  at  the  wanton  violation  of  the  laws 
and  constitution  of  his  country, — not  one  of  you  dared, 
in  those  dangerous   times,  publicly  to  avow  your  real 
opinions.  The  bold  and  independent  conduct  of  the  re- 


proceeding  at  New  Orleans.  381 

preservatives  of  a  free  people,  would  probably  have  been 
rewarded  by  a  military  arrest — a  violent  separation  from 
his  family  and  friends,  and  an  ignominious  transportation 
to — God  knows  where — to  a  Spanish  dungeon,  or  at  least 
to  a  distant  part  of  the  United  States,  to  the  utter  ruin 
of  his  fortune,  and  the  eternal  injury  of  his  honour  and 
reputarion.  Again,  sir — if  at  that  period  of  your  session, 
I  could  have  succeeded  in  sending  forward  a  proper  me- 
morial, 1  would,  after  having  voted  the  necessary  supplies 
for  the  support  of  the  government,  and  providing  by  all 
the  means  in  our  power  for  the  protection  and  safety 
of  the  country,  have  proposed  to  this  house  to  adjourn, 
because  ir  was  insulting  to  exhibit  to  a  people  just  ad- 
mitted to  rhe  enjoyment  of  the  boasted  principles  of 
republicanism,  the  deplorable  spectacle  of  a  military  chief 
in  the  very  presence  of-  their  legislature,  violating  not 
only  the  laws  and  constitution  of  their  own  territory,  but 
trampling  under  foot  that  sacred  charter  of  freedom, 
which  had  been  erected  at  the  expense  of  the  blood  and 
treasure  of  so  many  of  our  ancestors. 

What  was  the  language  of  every  native  Louisianian 
on  that  occasion?  "  Formerly,"  said  they,  "  such  con- 
duct would  not  have  surprised  us;  we  were  then  at  the 
mercy  of  arbitrary  power.  But  we  had  been  told  that  our 
situation  was  changed;  that  we  were  governed  by  laws, 
and  not  by  the  caprice  of  men;  that  the  rights  of  the  pri- 
vate citizen  were  as  sacred  as  those  of  the  highest  in 
authority;  that  the  humblest  cultivator  of  your  soil  and 
the  chief  magistrate  of  your  country,  were  bound  by  the 
same  laws,  and  subject  for  their  violation  to  the  same 
penalties.  What  has  become  of  this  boasted  liberty,  this 
government  of  laws? — It  has  fled,  like  a  vision,  before 
the  accursed  influence  of  military  despotism.  While  you 
on  the  one  hand  are  making  laws  at  an  enormous  expense 
to  your  country;  the  commander  in  chief  is  violating 
them  on  the  other,  setting  your  authority  at  defiance. 


382  Speeches  on  General  Wilkinson's 

trampling  upon  the  sovereignty  of  the  people,  and  pros- 
trating every  principle  of  liberty,  which  you  had  taught 
us  to  revere." — For  reasons  best  known  to  your  com- 
mittee, they  never  made  a  report.  And  here  I  cannot 
forbear  remarking  that  tliey  did  not  discharge  the  duty 
which  they  owed  to  their  country,  or  to  the  dignity  of 
this  house. — After  having  amused  you  for  upwards  of 
forty  days,  you  were  obliged  to  discharge  them  and  name 
another  committee  in  their  place,  who  have  reported  the 
memorial  now  under  consideration.  I  am  a  friend  to  this 
memorial  with  the  alterations  I  have  suggested,  because 
in  territorial  governments,  where  the  principal  officers 
are  appointed  by  the  president  of  the  United  States,  to 
whom  and  to  the  senate  alone  they  are  responsible  for 
their  conduct,  it  becomes  the  duty  of  the  representatives 
of  the  people,  whenever  their  rights  are  infringed,  to  lay 
their  complaints  before  congress,  the  legal  guardians  of 
the  liberties  of  the  people. — For  wise  purposes  it  has 
been  thought  proper  to  establish  this  kind  of  government 
in  remote  parts  of  the  union,  where  the  number  of  inha- 
bitants did  not  justify  the  formation  of  an  independent 
state.  It  is  a  kind  of  probationary  state,  (many  of  you, 
gentlemen,  may  think  it  a  purgatory)  through  which  it 
is  deemed  necessary  that  we  should  pass,  before  we  are 
admitted  to  the  full  enjoyment  of  that  glorious  inheri- 
tance which  is  the  birthright  of  every  native  born  Ame- 
rican. For  myself,  I  am  no  great  admirer  of  this  form  of 
government:  my  objections  to  it  are  various:  it  may, 
however,  be  the  best  which  could  have  been  devised  for 
us.  In  a  country  like  our's,  just  emerging  from  despot- 
ism, composed  of  the  inhabitants  of  various  nations  and 
languages,  unacquainted  with  political  concerns,  because 
they  had  not  before  been  allowed  to  take  any  share  in  the 
administration  of  government;  it  was  perhaps  good  po- 
licy to  regulate  their  admission  as  an  independent  mem- 


proceedings  at  New  Orlearis.  383 

ber  of  the  great  American  union,  by  gradual  and  pro- 
gressive steps.  But  it  never  for  this  purpose  was  intend- 
ed that  we  should  be  oppressed.  Congress  did  not  set 
over  us  men  who  were  to  rule  us  according  to  their  own 
arbitrary  will.  On  the  contrary,  they  extended  to  us  by 
express,  written,  and  clearly  defined  laws,  the  chief  of 
those  fundamental  principles  of  liberty,  recognised  and 
secured  by  the  federal  constitution. 

I  am  not  one  of  those  who  are  disposed  on  slight 
grounds  to  censure  the  conduct  of  public  men.  I  am  well 
awa/e  of  the  folly  of  attempting,  nay  of  the  impossibility 
of  satisfying  every  body.  I  hope  however  I  have  discern- 
ment enough  to  see,  and  courage  enough  to  expose  any 
wanton  inroads  upon  our  rights,  under  whatever  name, 
or  by  whatever  specious  pretexts  they  may  be  sanction- 
ed. We  are  removed  at  a  great  distance  from  the  seat  of 
the  general  government.  Until  very  lately  we  have  had 
no  delegate  upon  the  floor  of  congress;  and  as  it  relates 
to  the  subjects  of  which  we  are  now  speaking,  he  must 
be  totally  ignorant.  We  have  been  formerly  calumniated, 
and  we  were  silent.  We  have  been  recently  denounced, 
insulted,  and  accused  of  treason— it  is  therefore  high  time 
to  vindicate  ourselves. 

One  word,  Mr.  Chairman,  as  relates  to  the  general 
state  and  situation  of  our  country.  We  have  a  population 
of  nearly  60,000  souls,  scattered  over  a  territory  of  six 
hundred  miles  in  length,  and  nearly  the  same  breadth.  Of 
this  population,  about  one  half  are  slaves,  one  tenth  free 
persons  of  colour,  and  the  remainder  free  white  persons. 
The  whole  of  our  militia,  thinly  distributed  over  this 
extreme  region,  if  you  except  the  battalion  of  coloured 
people,  do  not  amount  to  more  than  six  thousand  men. 
During  the  existence  of  the  Spanish  government  here, 
in  addition  to  this  militia,  it  was  thought  necessary  for 
the  safety  of  the  country,  to  keep  up  a  considerable  mili- 


38-4  Speeches  on  General  Wilkinson's 

tary  force,  and  accordingly  the  king  of  Spain  maintained 
a  standing  army  In  the  different  parts  of  the  then  province 
to  the  amount  of  from   two  to  three  thousand  men;  and 
that  too  at  a  time  when  he  was  sole  proprietor  of  the 
whole  country,  and  free  from  the  menaces  of  any  enemy. 
Since  the  taking  possession  of  this  countrx  by  the  United 
States,  we  have  frequently  been  under  serious  apprehen- 
sions of  an  attack   on  the  part  of  the  Spaniards,   They 
have  more  than   once  invaded  our  territory:   thev  have 
constantly  kept  up  an  armed  force  on  our  frontiers;  and 
they  are  masters  of  the  country  not  only  on  the  east  a,nd 
west  of  our  settlements,  but  are  in  possession   of  Baton 
Rouge,  a  fort  which  could  be  easily  made  to  command 
the  navigation  of  the  Mississippi  from  above,  and  enable 
them  at  any  time  to  lay  waste  the   lower  country,  and 
seize  upon  this  city.  Notwithstanding  this  exposed,  de- 
fenceless situation;   notwithstanding  the    importance  of 
this  country  to  the  American  union;   we  never  have  had 
at  any  time,  (if  jny  information   be  correct,)  for  two  or 
three  years  past,  more  than  from  one  hundred  and  fifty 
to  three  hundred  troops  fit  for  actual  service  in  this  city 
or  its  vicinity.  But  where,  it  will  be  asked,  are  your  6000 
militia?  It  has  already  been  seen  over  what  an  extensive 
country  they  are  spread,  exposed  in  all  directions  to  a 
jealous  and  restless  neighbour.  But  this  is  not  all.  When 
the  number  of  our  slaves  is  taken  into  view,  any  man  in 
his  senses  will  see  that  instead  of  marching  our  militia 
from  their  homes  to  fight  foreign  battles,  it  will  be  always 
necessary  in  times  of  war,  to  strengthen  them  on  their 
own  plantations,  for  the  purpose  of  protecting  their  fami- 
lies, and  enabling  them  to  keep  up  a  proper  subordina- 
tion among  their  slaves.   Our  militia  are  moreover  pecu- 
liarly situated.  They  'nave  never  been  as  yet,  owing  to 
various   cireumstanc.es,    properly    organized;    and    this 
country  has  changed  masters  so  often  in  the  course  of  a 


proceedings  at  New  Orleans.  385 

few  years,  and  its  political  relations  so  frequently  varied, 
that  it  would  be  unnatural  to  expect  from  its  inhabitants 
in  rhe  course  of  a  few  months,  during  which  time  they 
have  experienced  many  vexations  and  disappointments, 
any  very  ardent  affection,  either  to  our  nation  or  our  go- 
vernment. I  do  not  insinuate  by  these  observations  that 
the  people  of  Louisiana  are  not  brave,  and  possessed  of 
all  the  qualifications  which  adorn  the  character  of  man, 
and  render  him  a  good  citizen:  1  believe  them  attached 
to  the  principles  of  our  government,  and  willing  to  sacri- 
fice their  lives  and  their  fortunes  in  defence  of  their 
country:  nor  have  I  taken  this  view  of  our  situation  for 
the  purpose  of  censuring  our  local  or  general  govern- 
ment. I  will  not  pretend  to  say  where  the  blame  lies.  I 
know  not  whether  our  real  situation  has  ever  been  known, 
or  whether  if  known,  it  would  have  been  better  provided 
for.  All  I  contend  for  is,  that  we  have  been  left  in  a  de- 
fenceless, unprotected  state; — and  that  at  the  arrival  of 
Gen.  Wilkinson  upon  the  Sabine,  we  were  at  the  mercy  of 
the  Spaniards  or  of  any  enemy  that  might  have  chosen  to 
make  war  upon  us.  Judge  then,  sir,  of  the  gratitude  and 
affection  with  which  that  general  was  received,  when  after 
having  settled  the  difficulties  in  the  west,  which  had  occa- 
sioned great  uneasiness  and  alarm,  he  came  with  his  army 
to  take  up  winter  quarters  in  this  city.  He  was  hailed 
with  joy  by  every  lover  of  his  country.  We  had  heard 
with  some  anxiety,  it  is  true,  of  his  having  demanded  of 
the  acting  governor  of  the  Mississippi  territory,  five  hun- 
dred militia,  and  of  his  having  given  orders  for  the  dis- 
mantling Fort  Adams  and  for  the  transporting  to  this 
city  all  the  artillery  and  military  stores  of  that  post.  But 
we  flattered  ourselves  that  it  was  for  the  better  defence 
of  the  country,  and  the  protection  of  its  inhabitants. 
Shortly  after  his  arrival,  every  thing  was  put  in -motion, 
and  great  preparations  were  made  for  repairing  the  old 
Vol.  I).  3  C 


386  Speeches  on  General  Wilkinson's 

fortifications.  In  addition  to  the  soldiers,  a  number  of 
negroes  were  hired  at  enormous  expense — large  contracts 
for  lumber  and  pickets  were  made — and  we  were  inform- 
ed that  the  whole  city  was  to  be  immediately  put  in  a 
state  of  defence — Military  guards  were  posted  in  various 
parts  of  the  town — one  of  our  principal  streets,  which 
had  cost  the  corporation  many  hundred  dollars,  was 
blocked  up,  and  public  curiosity  was  excited  to  an  alarm- 
ing pitch — the  most  profound  mystery  was  observed  on 
the  part  of  the  general  and  the  governor,  as  to  the  cause 
of  these  warlike  preparations — conjecture  was  on  tiptoe; 
and  as  it  is  impossible  to  stifle  inquiry  in  the  busy  minds 
of  freemen,  every  one  made  war  with  the  nation  he  liked 
the  least,  and  by  turns  the  batteries  of  St.  Charles  and 
St.  Louis  were  made  to  play  against  Spain,  France,  En- 
gland,  and  even  against  our  own  country.  The  most  ra- 
tional part  of  the  community  were  lost  in  astonishment. 
"  If  we  are  preparing,  (said  they)  to  fight  a  foreign  foe, 
why  desert  our  frontiers,  entrench  ourselves  in  New  Or- 
leans, place  our  safety  in  her  imperfect  walls;  and  leave 
the  Balize,  Fort  St.  John's,  Fort  Adams,  and  the  Walnut 
Hills,  unprotected  by  a  single  cannon  or  a  single  man." 

While  the  public  mind  was  in  this  state  of  agitation  and 
alarm,  an  assembly  of  the  merchants  was  called  at  the  go- 
vernment house.  To  these  gentlemen  the  general  stated  that 
Aaron  Burr,  in  combination  with  a  number  of  wealthy  and 
influential  characters,  from  various  parts  of  the  United 
States,  were  engaged  in  a  desperate  and  lawless  enterprise 
to  invade  Mexico,  to  sever  the  Atlantic  from  the  Western 
states,  to  make  himself  master  of  this  city,  plunder  the 
banks,  seize  upon  the  shipping,  and  under  convoy  of  a 
British  fleet,  to  transport  his  army  to  La  Vera  Cruz.  In 
the  prosecution  of  these  objects,  to  use  the  language  of 
your  memorial,  Burr  himself  was  to  be  at  Natchez  by  the 
15th  or  20th  of  December,  with  2,000  men,  and  was  soon 


proceedings  at  New  Orleans*  387 

afterwards  to  be  joined  by  a  body  of  six  thousand  more. 
This  information  the  general  said  he  had  received  partly 
by  a  letter  in  cypher,  addressed  to  him  from  Mr.  Burr,  and 
partly  by  a  letter  from  Mr.  Dayton,  also  in  cypher,  re- 
ceived on  the  10th  of  October  last,  while  at  Natchitoches. 
The  other  parts  of  the  plan  had  been  communicated  to  him 
by  accredited  agents  of  Burr,  sent  for  that  express  purpose. 

The  governor  confirmed  the  account  which  had  been 
given  by  the  general,  and  read  some  parts  of  a  letter, 
which  he  had  received  from  a  gentleman  of  high  respec- 
tability in  Tennessee,  advising  him  to  beware  of  traitors 
— to  beware  of  the  20th  of  December — to  beware  of  the 
ides  of  March — and  both  him  and  the  general  united  in 
recommending  an  embargo  to  be  laid  on  the  shipping, 
which  was  accordingly  done. 

It  is,  Mr.  Chairman,  difficult  to  conceive,  but  much 
more  so  to  describe  the  consternation  which  this  disclo- 
sure produced  upon  the  public  mind;  but  great  as  it  was, 
it  was  equalled  if  not  surpassed  by  the  honest  indignation 
which  burst  forth  against  the  authors  of  this  infernal  plot, 
from  the  bosom  of  every  citizen  of  our  country.  It  is 
impossible  to  determine  what  description  of  men  were 
most  ardent  to  meet  the  traitorous  foe — and  I  solemnly 
declare  my  belief  that  there  is  not  a  respectable  citizen 
of  the  territory  who  would  not  have  risked  his  life  in  de- 
fence of  his  country.  One  or  two  new  volunteer  com- 
panies were  formed,  the  old  ones  were  augmented,  and 
the  battalion  of  Orlea?is  Volunteers  gallantly  offered  their 
services  to  the  executive  for  the  defence  of  their  coun- 
try. The  officers  of  the  militia  were  extremely  active; 
great  exertions  were  made  to  complete  their  organiza- 
tion, and  every  demonstration  of  zeal  in  the  common 
cause  given  on  their  part.  There  seemed  to  be  but  one 
object  and  but  one  mind — resistance,  and  death  to  the 
traitors.  While  we  were  engaged  in  reflecting  upon  these 


388  Speeches  on  General  Wilkinson's 

things,  it  was  rumoured  that  the  general  intended  to  de- 
clare martial  law,  and  that  the  governor  meant  to  sus- 
pend the  writ  of  habeas  corpus.  The  former  part  of  this 
threat  was  in  effect  immediately  put  partially  into  execu- 
tion, and  the  latter  part  was  suspended  only  for  the  want 
of  power  and  from  a  representation  of  the  folly  and  dan- 
ger of  such  a  measure.  On  the  13th  of  December,  doc- 
tor Bollman  was  arrested  in  the  public  streets  by  a  mili- 
tary guard,  under  the  orders  of  general  Wilkinson,  which 
was  soon  afterwards  followed  by  the  arrest  of  Swartwout 
and  Ogden.  These  gentlemen  had  been  but  a  short  time 
in  the  country,  and  were  known  but  to  few  of  its  inha- 
bitants. The  extraordinary  nature,  however,  of  their 
arrest  and  confinement,  in  open  violation  of  the  best  pri- 
vileges of  an  American  citizen,  excited  some  interest  in 
the  public  opinion,  and  induced  their  friends  to  sue  out 
writs  of  habeas  corpus  in  their  favour.  The  first  of  these 
writs  was  issued  by  the  superior  court  in  favour  of  Boll- 
man,  who  had  already  been  hurried  out  of  the  country, 
or  at  least  was  so  alleged  by  the  general,  out  of  the 
reach  of  civil  process.  The  return  to  this  writ  was  per- 
haps the  most  singular  in  manner  and  stile  of  any  ever 
before  made  to  a  court  of  justice.  The  general's  ap- 
proach to  the  court  was  announced  by  his  aid  de  camp, 
Mr.  Duncan.  He  appeared  at  the  bar,  clothed  with  all 
the  insignia  of  military  power.  He  informed  their  ho- 
nours, that  he  took  upon  himself  all  responsibility  for  the 
arrest  of  Errick  Bollman,  and  that  he  had  adopted  mea- 
sures for  his  safe  delivery  to  the  executive  of  the  United 
States,  as  he  would  do  with  all  others,  without  regard  to 
standing  or  station,  against  whom  satisfactory  proof  of 
guilt  might  arise  in  his  mind.  He  enlarged  considerably 
upon  the  extent  of  the  conspiracy;  the  great  and  im- 
minent danger  to  which  we  were  immediately  exposed; 
the  wealth,  the  talents  and  number  of  Burr's  associates; 


proceedings  at  New  Orleans.  389 

and,  casting  his  eyes  around  upon  an  appalled  multitude, 
declared,  that  even  within  this  city,  there  were  many 
enemies  to  their  country;  that  treason  not  only  lurked  in 
your  hiding  places,  but  stalked  proudly  through  your 
streets  at  mid  day!  The  several  documents  in  support 
of  these  allegations,  particularly  Burr's  and  Dayton's 
letters  in  cypher,  and  parts  of  the  letter  which  the  go- 
vernor had  received  from  Tennessee,  suppressing  as  the 
governor  had  done  before  him,  the  name  of  its  author, 
and  whatever  related  to  the  general  himself!  He  further 
said  that  it  was  after  several  consultations  with  the  go- 
vernor and  two  of  the  judges  of  the  territory,  viz.  Hall 
and  Mathews,  that  he  had  hazarded  this  step,  but  being 
contradicted  by  the  honourable  Judge  Mathews,  the  ge- 
neral replied,  that  he  had  understood  him  to  that  effect, 
and  then  looking  down  upon  the  bar,  he  called  out  for 
two  of  its  members,  and  denounced  them  as  traitors  to 
their  country.  The  disgraceful  scene  that  followed,  should 
be  buried  in  eternal  oblivion.  Great  God!  shall  the  sa- 
cred temple  of  justice  be  converted  (by  an  American 
officer)  into  a  club  of  revolutionary  tumult,  and  military 
denunciation?  and  shall  the  citizens  of  freedom  look 
tamely  on?  Shall  the  insulted  ministers  of  the  law  return 
thanks  to  its  violator,  applaud  his  conduct,  bow  before 
him,  and  kneel  at  his  feet?  The  general  retired,  not  to 
the  place  which  he  deserved,  but  in  triumph,  and  the 
friends  of  the  constitution  departed  with  grief  and  indig- 
nation and  despair,  to  bewail  the  misfortunes  of  their 
country.  The  effects  of  this  disastrous  day  were  soon 
every  where  discovered.  Suspicion  became  identified 
with  treason.  Every  one  conscious  of  his  own  innocence 
and  believing  the  declaration  of  the  general  to  be  true, 
concluded  that  others  were  guilty — public  as  well  as 
private  confidence  was  lost — individual  friendship  was 
destroyed — all  the  bonds  of  society  were  torn  asunder-r- 


390  Speeches  on  General  Wilkinson's 

and  public  tranquillity  as  well  as  domestic  happiness  were 
banished  from  our  shores:  Broils  and  party  spirit  suc- 
ceeded in  their  places;  and  the  contention  was  between 
the  friends  of  the  law,  and  the  advocates  for  arbitrary 
power.  The  people  however  were  still  united  upon  one 
point — resistance  to  Burr.  A  similar  return  was,  in  the 
last  resort,  made  to  the  habeas  corpus  in  the  case  of  Og- 
den,  who  after  having  been  once  set  at  liberty  by  the 
civil  authority,  was  a  second  time  arrested  and  confined 
along  with  Mr.  Alexander,  by  the  orders  of  the  general. 

In  the  mean  time  guards  were  placed  above  the  city 
to  arrest  and  examine  all  travellers,  to  stop  all  boats,  ex- 
amine their  passengers,  and  to  fire  upon  the  boats  which 
refused  to  come  to!  A  detachment  of  dragoons  was  sent 
to  Manchac,  with  the  same,  and  additional  orders  to 
break  open  and  examine  all  letters  and  other  papers 
found  in  the  possession  of  travellers. 

A  second  regulation  was  established  making  it  neces- 
sary for  vessels  and  citizens  of  this  territory,  as  well  as 
other  persons,  to  furnish  themselves  with  passports;  and 
those  who  neglected  to  do  so,  were  compelled  to  return 
to  the  city  of  New  Orleans,  in  search  of  a  document, 
the  necessity  of  which  had  never  been  publicly  notified. 

While  these  things  were  going  on,  at  the  Balize  and 
in  the  country,  your  post-office  was  erected  into  an  in- 
quisition; private  letters  were  broken  open;  the  secrets 
of  individuals  were  disclosed;  and  the  reputation  of  every 
honest  man  exposed  to  the  mercy  of  every  malicious 
scribbler.  The  private  as  well  as  public  conduct  of  in- 
dividuals, was  watched;  and  they  were  alarmed,  mena- 
ced or  intreated,  according  to  the  timidity  or  firmness  of 
their  dispositions:  secret  depositions  were  taken,  without 
the  knowledge  of  those  they  were  intended  to  criminate: 
and  characters  were  to  be  tried,  for  acquittal  or  infamy, 
l>efore  a  judge  whose  own  fidelity  had  long  been  suspect- 


proceedings  at  New  Orleans.  391 

ed.  The  information,  however,  from  Kentucky,  the  pre- 
tended seat  of  the  conspiracy,  did  not  altogether  comport 
with  the  fears  as  to  the  dreadful  situation  into  which  the 
public  conduct  of  our  rulers  had  reduced  this  unfortu- 
nate city.  Boats  were  constantly  descending  the  river; 
private  communications  were  daily  received,  and  it  did 
not  appear  that  they  were  under  any  great  apprehension 
there,  either  for  their  own,  or  our  safety.  Burr  it  is  true 
was  wandering  through  that  and  the  neighbouring  states 
in  a  suspicious  manner;  some  apprehension  had  been  ex- 
cited in  the  public  mind,  and  he  had  been  twice  arraigned 
before  the  district  court  of  Kentucky,  for  hostile  inten- 
tions against  the  peace  of  the  union,  but  was  acquitted  on 
both  occasions.  Such  was  the  situation  of  affairs,  when  in 
the  afternoon  of  the  14th  of  January,  general  Adair  arriv- 
ed among  us.  This  gentleman  it  had  been  reported  was 
to  hold  a  distinguished  command  in  Burr's  army.  He 
made  his  entry  into  this  city  about  one  o'clock  alone  and 
unarmed.  He  took  up  his  lodging  at  a  public  boarding 
house,  and  being  indisposed  sent  a  messenger  to  the  go- 
vernor to  inform  him  of  his  arrival,  and  requesting  that 
information  might  be  sent  to  general  Wilkinson  to  the 
same  effect.  He  mentioned  that  he  had  left  Nashville  on 
the  22d  of  December,  and  that  Burr  was  then  there  with 
only  two  flat  boats,  destined  for  this  city.  He  had  never 
been  in  New  Orleans  but  once  before,  in  1800,  when  he 
remained  only  a  few  days;  and  could  not,  therefore,  have 
any  extensive  acquaintance  with  its  inhabitants.  He  had 
very  recently  occupied  a  distinguished  place  in  the  coun- 
cils of  the  government,  and  was  held  high  in  the  estima- 
tion of  kis  country,  as  a  man  of  talents  and  bravery.  About 
four  o'clock  on  the  same  day  of  his  arrival,  whilst  at  din- 
ner, a  detachment  of  the  regular  troops,  consisting  of  one 
hundred  and  twenty  men  commanded  by  colonel  Kings- 
bury, accompanied  by  one  of  the  general's  aids,  posted 


302  Speeches  on  General  Wilkinsons 

themselves  before  the  door  of  the  hotel:  Adair  was  vio- 
lently dragged  from  the  table;  paraded  through  the  streets, 
exposed  to  the  pitying  gaze  of  hundreds  of  his  astonished 
fellow  citizens,  and  indisposed  as  he  was,  committed  to 
close  confinement  in  a  cold,  uncomfortable  room  at  the 
barracks.  They  beat  to  arms  through  the  different  streets 
of  the  city; — all  the  inhabitants  were  in  commotion; — 
the  battalion  of  volunteers  and  a  number  of  the  regular 
troops  were  ordered  under  arms;  and  three  other  gentle- 
men, inhabitants  of  the  city,  and  all  of  them  holding  offices 
under  the  territorial  government,  were  arrested  and  con- 
veyed to  head- quarters.  Two  of  these  gentlemen  were 
liberated  by  writs  of  habeas  corpus ',  and  the  other  was  vo- 
luntarily released  by  the  general  himself  some  time  after. 
A  few  days  subsequent  to  this  period,  certain  information 
was  received  of  the  arrival  of  Burr  in  the  neighbourhood 
of  Natchez,  with  thirteen  flat  boats,  loaded  principally 
with  provisions,  and  with  only  a  sufficient  number  of  men 
to  conduct  them  down  the  river:  no  guns,  ammunition 
or  other  military  stores  were  found  on  board,  more  than 
is  commonly  met  with  in  Kentucky  boats.  And  from  that 
time  to  his  surrendering  himself  to  the  civil  authority,  it 
does  not  appear  that  he  was  joined  by  any  additional  force. 
Notwithstanding  Burr's  surrender,  however;  notwith- 
standing the  most  unequivocal  evidence  of  the  feebleness 
of  his  force  and  the  failure  of  his  plans;  notwithstanding 
the  conviction  in  the  mind  of  every  man  of  reflection  of 
the  want  of  legal  power  in  territorial  governments,  to  sus- 
pend the  writ  of  habeas  corpus;  the  governor  of  the  terri- 
tory addressed  to  this  house  on  the  LOth  of  February,  a 
message  recommending  that  measure,  and  assigning  as 
his  reason  for  so  doing,  that  he  had  been  "  recently  ad- 
vised of  the  approach  to  this  city  of  an  agent  of  the  con- 
spirators, of  his  name,  the  route  he  had  taken,  and  the  ob- 
ject of  his  mission;  but  that  he  had  it  not  in  his  power  to 


proceedings  at  JVezv  Orleans.  393 

adduce  such  proof  as  would  justify  a  civil  magistrate  to 
commit  him  to  prison."  An  American  citizen  against 
whom  suspicion  was  entertained,  but  of  whose  guilt  no 
proof  could  be  adduced,  was  expected  in  your  city,  and 
it  was  probable  that  he  would  be  rescued  from  that  sus- 
picion by  the  application  of  the  writ  of  habeas  corpus,  and 
placed  upon  a  footing  which  the  laws  of  your  country  en- 
titled him  to,  and  you  are  called  upon  by  the  executive 
of  this  territory  to  take  away  not  only  from  him,  but  from 
every  other  citizen,  the  great  constitutional  bulwark  of  the 
liberties  of  the  American  people.  The  fate  of  this  mes- 
sage is  well  known.  But,  sir,  to  the  shame  of  this  house, 
let  me  ask,  what  would  have  been  its  fate  had  not  the 
minority  resorted  to  the  measure  of  consulting  the  judici- 
ary of  our  country.  During  the  time  of  three  days  of 
secret  debate  which  this  important  question  occupied,  it 
was  evidently  seen  that  a  large  majority  of  this  house,  was 
determined  at  all  hazards  (I  will  not  question  their  mo- 
tives) to  second  the  views  of  the  executive.  Some  of  your 
members  were  bold  enough  to  say,  that  the  governor  had 
recommended  the  measure;  and  that  it  must  therefore  be 
proper.  I  am,  however,  both  for  myself  and  my  country, 
grateful  to  them,  for  yielding  their  opinions  to  superior 
wisdom;  and  leave  it  to  the  world  to  decide  how  far  the 
governor  was  justifiable  (or  ignorant  of  your  powers)  in 
recommending,  for  the  apprehension  of  one  suspected  in- 
dividual, the  suspension  of  the  dearest  privilege  of  an 
American  citizen. 

From  the  view  I  have  taken  of  this  subject,  Mr.  Chair- 
man, you  will  not  be  induced  to  believe  that  I  have  any 
doubt  of  the  existence  of  a  plan  to  subvert  our  govern- 
ment, and  to  invade  the  dominions  of  Spain.  On  the 
contrary,  sir,  I  most  firmly  believe  it;  I  believe  that  such 
a  plan  has  been  long  in  agitation,  that  it  has  taken  deep 
root  and  spread  through  a  great  portion  of  the  United 

Vol.  II.  3D 


394  Speeches  on  General  Wilkinson's 

States.  But  sir,  I  am  persuaded  from  the  facts  I  have 
detailed,  that  I  can  convince  you,  this  honourable  house 
and  the  whole  world,  that  its  origin  is  not  to  be  found  in 
Burr's  cyphered  letters,  in  Dayton's  communications,  or 
in  Burr's  agents  to  Wilkinson;  and  that  its  defeat  is  not 
to  be  ascribed  to  the  affected  patriotism  either  of  general 
Wilkinson  or  governor  Claiborne.  The  officiously  lop- 
ping off  limbs  to  preserve  the  body  may  answer  the  am- 
bitious, avaricious  purposes  of  an  ignorant  quack,  but 
will  never  meet  the  sanction  of  a  sound  intelligent  phy- 
sician, who  upon  taking  a  view  of  the  whole  distemper, 
clearly  sees  that  such  mutilations  can  have  no  other  effect 
than  to  weaken  the  body,  and  hurry  the  patient  to  death. 
I  have  no  idea  that  your  constitution  is  to  be  preserved 
by  trampling  it  under  foot — that  your  laws  are  to  be 
maintained  by  setting  them  at  defiance.  No  man   will 
doubt  that  Burr  was  a  conspirator,   and  if  we  believe 
Wilkinson,  that  Dayton  and  many  others  were  concern- 
ed with  him.  Let  us  look  at  his  conduct.  If  I  am  not 
mistaken  the  last  time  he  met  the  general  at  the  Federal 
City,   he  accosted  him   nearly  in   the  following  words: 
(my  authority  is  governor  Claiborne) — General,  what  are 
you  about — what  has  become  of  your  ambition — your 
love  of  glory  and  dangerous  enterprise?  I  possess  these 
qualities,  replied  the  general,  in  the  same  degree  I  ever 
did.  Then  what  are  you  doing  here?  said  Burr.  Point 
out  to  me  a  field,  said  the  general,  and  I  am  your  man. 
Burr  pointed  to  Mexico — and  the  remainder  of  the  con- 
versation was  in  secret,  and  is  still  unknown  to  us.  The 
general  is  appointed  to  the  government  of  Louisiana,  and 
we  shortly  afterwards  find  Burr  on  his  way  to  that  coun- 
try. Why  this  visit?  Was  it  for  the  pleasure  of  travers- 
ing a  wilderness  of  several  hundred  miles  in  extent? 
Was  it  to  examine  the  dreary  plains  of  the  Indiana  Ter- 
ritory? To  take  a  view  of  the  wretched  villages  of  Kas- 


proceedings  at  New  Orleans.  395 

kaskias  or  Kahokia?  Or  was  it  to  see  general  Wilkinson? 
From  St.  Louis  he  descends  to  New-Orleans,  not  as  an 
ordinary  traveller,  but  in  an  elegant  barge,  manned  by 
the  troops  of  the  United  States,  soldiers  under  the  gene- 
ral's command.  To  whom  is  he  introduced,  and  in  what 
style?  To  the  old  friends  of  the  general,  and  in  terms 
of  the  highest  recommendation,  both  as  to  his  talents  and 
probity.  He  spends  a  few  days  here — returns  to  St. 
Louis — talks  over  with  the  general  the  plan  of  invading 
Mexico  (ridicules  a  foolish  club  he  had  heard  of  at  New 
Orleans,  established  upon  patriotic  principles)  and  de- 
parts for  the  Atlantic  states.  The  next  news  we  hear  of 
him  is  at  Philadelphia,  in  the  month  of  August,  from 
whence  he  writes  to  the  general,  not  as  you  or  I  would 
write,  but  a  letter  in  cypher,  a  language  unknown  to  any 
one  but  themselves,  in  which  he  states  that  he  had  ob- 
tained funds,  and  actually  commenced  the  enterprise — 
an  enterprise  in  which  Wilkinson  was  to  be  second  to 
Burr  only!  In  which  Wilkinson  was  to  dictate  the  rank 
and  promotion  of  his  officers.  Examine  this  communi- 
cation, sir,  and  compare  its  contents  with  your  know- 
ledge of  the  human  heart.  What  internal  evidence  does 
it  contain?  Put  your  judgment  under  the  control  of  that 
evidence,  and  follow  me  from  Natchitoches  to  New  Or- 
leans, and  the  honourable  gentleman  from  Acadia  will 
lose  his  motion.  What  did  the  general  do  on  the  receipt 
of  Burr's  letter?  He  writes  to  the  president  of  the  Uni- 
ted States,  giving  him  some  account  of  the  scheme.  This 
was  proper.  But  what  ought  he  to  have  done  further? 
He  knew  that  Burr  was  in  Kentucky,  and  that  the  enter- 
prise had  not  yet  made  much  progress.  He  knew  that 
the  documents  in  his  possession,  if  forwarded  in  legal 
form,  to  the  governors  of  Kentucky,  Tennessee  and 
Ohio,  would  be  sufficient  to  enable  the  constituted  au- 
thorities of  those  states  to  seize  the  traitor  and  stifle 


396  Speeches  on  General  Wilkinson's 

at  once  the  whole  nefarious  plan.  He  knew  from  his 
own  correspondence  with  Burr  that  these  documents 
might  have  been  sent  in  time  to  meet  him  there,  to 
surprise  his  army,  if  he  had  one,  and  capture  its  chief. 
Did  he  do  this?  No,  sir;  whilst  the  honest  state  of  Ken- 
tucky was  groping  in  the  dark  for  testimony — whilst  she 
was  endeavouring  to  get  some  clue  for  the  discovery  of 
Burr's  guilt,  general  Wilkinson,  in  possession  of  damning 
proofs  against  him,  was  not  only  silent  upon  the  subject, 
but  wrapped  himself  up  in  mystery  and  suspicion;  and 
took  such  a  stand  as  placed  his  conduct,  and  the  whole 
of  his  operations  in  the  most  equivocal  point  of  view. 
What  would  have  been  the  fate  of  Burr  and  his  accom- 
plices, had  the  courier,  Mr.  Smith,  on  his  way  to  Wash- 
ington, left  a  copy  of  Wilkinson's  testimony  with  the 
governors  of  Tennessee,  Kentucky  and  Ohio?  He  pass- 
ed through  Nashville  about  the  middle  of  November, 
previous  to  Burr's  trials  in  Kentucky,  and  thirty  or  forty 
days  previous  to  his  departure  from  Tennessee.  What 
was  the  general  about?  We  find  him  at  Natchez  on  the 
tenth  of  November  soliciting  the  Acting  governor  of  the 
Mississippi  Territory  for  five  hundred  of  his  militia.  But 
the  governor  it  seems  had  the  astonishing  insolence  to 
demand  for  what  purpose  these  men  were  wanted?  The 
general  icfused  to  satisfy  his  curiosity,  and  the  men  were 
not  granted.  W'hy  this  demand  on  the  part  of  the  gene- 
ral? Burr  was  expected  at  Nachez  in  a  few  days  with 
two  thousand  troops,  and  therefore  the  governor  of  that 
territory  must  send  five  hundred  of  his  militia  to  New 
Orleans — he  must  disarm  himself,  deprive  his  country 
of  its  only  force,  and  leave  its  inhabitants  unprotected — 
a  prey  to  their  own  slaves,  or  the  neighbouring  savages 
— and  for  what?  Because  in  a  short  time  a  powerful 
enemy  was  to  be  at  his  gates.  Further,  sir — why  did  the 
general  conceal  from  governor  Meade  the  projects  of 


proceedings  at  New  Orleans.  397 

Burr?  Was  it  to  put  him  on  his  guard,  to  enable  him  to 
make  a  stand  against  the  invader?  or  was  it  to  lull  him  to 
sleep,  that  his  country  might  be  found  open  and  defence- 
less, and  the  road  to  New  Orleans  free  from  obstructions? 
I  call  upon  the  gentlemen,  sir,  to  answer  these  questions. 
I  will  new  proceed  to  New  Orleans.  A  t'tw  days  after  the 
general's  arrival  in  this  city,  governor  Claiborne  did  me 
the  honour,  under  the  most  solemn  injunction  of  secrecy, 
to  disclose  to  me  all  the  particulars  of  Burr's  projects,  and 
to  consult  me  as  to  the  best  measures  that  could  be  adopted 
for  the  safety  of  the  countrv.  He  seemed  to  be  confounded 
with  fear  and  astonishment,  and  observed  from  the  gene- 
ral's account,  Burr  had  many  powerful  friends  in  this  city. 
He  asked  me  whether  I  had  any  knowledge  upon  that 
subject;  and  intreated  me  if  I  had  to  communicate  it  to 
him  with  that  candor  and  love  of  my  country  which  he 
did  me  the  honour  to  say  he  knew  I  possessed.  I  replied 
that  I  never  had  heard  of  such  a  scheme,  and  that  I  firmly- 
believed  that  there  was  not  a  man  in  the  territory,  (the 
agents  and  officers  of  foreign  governments  excepted)  who 
would  not  risk  his  life  for  its  defence — that  upon  the  in- 
tegrity of  the  union  depended  the  liberties  not  only  of  this 
territory,  but  of  the  whole. American  empire,  and  that  I 
was  warranted  in  saying  from  a  knowledge  of  the  pu  >lic 
sentiment  and  the  character  of  the  people  at  large,  that 
Burr  nor  no  other  man  either  had,  or  would  ever  be  able 
to  find  among  the  people  of  Louisiana,  friends  to  a  scheme 
pregnant  with  so  much  ruin  and  marked  with  infamy.  I 
further  observed  that  he  himself  must  have  heard  much 
conversation  upon  the  subject  of  a  war  with  Spain,  and  an 
invasion  of  Mexico  in  case  of  that  event.  That  this  was  a 
favourite  topic  with  all  the  true  Americans  in  this  country, 
as  well  as  with  many  of  the  native  Louisianians — that  some 
time  since,  when  from  the  political  relations  between  the 
United  States  and  Spain,  every  man  of  sense  was  appre- 


398  Speeches  on  General  Wilkinson's 

hensive  that  war  would  be  the  result,  a  club  was  formed  in 
this  city,  called  the  Mexican  society — that  it  h?d  fb 
object  collecting  information  relative  to  the  population  and 
force  of  the  internal  provinces  of  Spain,  which  in  the  event 
of  war,  might  be  useful  to  the  United  States — that  I  was 
a  member  of  that  club,  and  the  principal  members  of  it 
were  men  of  great  talents  and  high  standing  in  society, 
and  distinguished  for  their  zeal  in  support  of  our  govern- 
ment. But  I  assured  him  upon  the  honour  of  a  gentle- 
man, that  the  society  had  ceased  to  exist  for  many  months 
— that  we  never  had  heard  of  Burr's  plans,  and  that  nei- 
ther directly  or  indirectly  did  I  ever  hear  from  him  or  any 
other  man  upon  earth,  any  propositions  hostile  to  the  inte- 
rests of  the  United  States,  or  any  other  nation  with  which 
we  were  at  peace.  His  excellency  told  me  that  he  had  not 
himself  seen  the  original  documents  upon  which  the  gene- 
ral founded  his  calculations — but  that  he  had  received 
verbally  from  him  a  full  and  satisfactory  account  of  them. 
I  suggested  the  propriety  of  his  obtaining  certified  copies 
of  all  the  important  facts;  and  of  his  immediately  trans- 
mitting them  to  the  governors  of  the  upper  states  and 
territories,  as  well  as  to  the  president  of  the  United 
States.  I  advised  him  immediately  to  dispatch  couriers 
for  that  purpose,  and  offered  my  services,  to  set  out  the 
next  day,  if  necessary,  to  Kentucky.  I  told  him  that  I 
had  confidence  in  the  patriotism  and  integrity  of  the  up- 
per country;  and  as  the  general  had  neglected  to  give 
them  information  of  their  danger,  it  might  be  yet  time; 
and  that  at  all  events  it  was  his  duty  to  do  so.  I  sugges- 
ted the  propriety  of  his  taking  a  strong  ground;  calling 
out  and  putting  into  actual  service  several  hundred  of 
his  militia,  and  of  his  retaining  them  under  his  own  com- 
mand. I  opposed  the  declaring  martial  law,  or  the  sus- 
pension of  the  writ  of  habeas  corpus.  I  considered  such 
measures   unnecessary,  illegal  and  calculated  to  excite 


proceedings  at  New  Orleans.  399 

alarm,  destroy  all  confidence  in  the  civil  authority,  and 
throw  the  whole  government  into  the  hands  of  the  mili- 
tary chief.  I  took  a  view  of  the  general  conduct  of  that 
officer,  and  although  I  hoped,  and  was  willing  to  believe 
that  he  might  be  actuated  by  the  best  of  motives,  yet  I 
thought  his  conduct  not  calculated  to  inspire  that  confi- 
dence which  the  public  safety  so  urgently  required. 

In  giving  these  opinions  I  discharged  my  duty — but 
the  executive  thought  proper  to  take  a  different  course. 
We  see  him  immediately  afterwards  consenting  to,  and 
approving  of  unlawful  military  arrests,  and  the  transpor- 
tation of  your  fellow  citizens.  You  see  him  advising  an 
illegal  embargo  upon  your  shipping,  transferring  to  the 
general  the  command  of  the  battalion  of  Orleans  Volun- 
teers without  their  consent  or  knowledge,  and  you  see 
this  respectable  corps  converted  into  constables  and 
catchpoles — you  see  them  employed  in  dragging  their 
former  friends  and  companions  from  their  houses,  parad- 
ing them  through  the  streets  to  their  places  of  confine- 
ment. You  see  them  posted  on  the  road  engaged  in  the 
odious  task  of  hunting  down  their  fellow  citizens,  search- 
ing their  pockets,  breaking  open  their  letters  and  acting 
as  spies  upon  their  conduct.  Could  you,  sir,  approve  of 
such  measures  as  these,  and  will  you  now  withhold  a 
knowledge  of  them  from  the  general  government?  I  ven- 
tured from  the  beginning  to  refuse  them  my  approbation; 
and  when  acting  under  the  obligations  of  executive 
favour,  and  in  spite  of  threats  and  intreaties  I  dared  upon 
this  floor  to  stand  up  in  defence  of  the  violated  rights  of 
my  constituents,  I  flatter  myself  that  I  shall  now,  having 
got  rid  of  those  obligations,  be  intitied  to  your  indul- 
gence for  the  time  I  shall  take  up,  and  your  candid  ex- 
amination of  such  arguments  as  my  feeble  talents  may 
enable  me  to  make  use  of.  We  have  seen,  sir,  that  sus- 
picion alone  was  sufficient  in  those  times  to  insure  your 


400  Speeches  on  General  Wilkinson's 

arrest.  If  you  dared  assert  from  your  knowledge  of  the 
patriotism  of  the  western  states,  that  Burr  would  not 
succeed — that  he  never  would  find  in  Kentucky  a  suffi- 
cient number  of  men  to  put  his  plans  into  execution,— 
you  wrere  accused  of  wishing  to  lull  the  people  into  a 
state  of  dangerous  security;  to  stifle  the  vigilance  of  go- 
vernment; and  were  therefore  denounced  as  a  friend  to 
Burr.  If  you,  on  the  other  hand,  gave  implicit  confidence 
to  all  the  generics  information;  if  you  believed  that  Burr 
could  easily  raise  six  or  ten  thousand  men,  and  that  such 
was  his  character  and  talents  that  with  that  force  nothing 
could  stop  him,  you  were  equally  his  friend,  and  a  trai- 
tor to  your  country. 

If  you  admitted  that  danger  existed,  but  avowed  the 
opinion  that  the  laws  of  your  country  were  adequate  to 
its  suppression,  and  that  your  courts  of  justice  were 
open;  you  were  told  that  it  was  necessary  "  to  anticipate 
the  tardy  process  of  the  law" — that  such  old-fangled 
opinions  were  not  applicable  to  the  present  times;  and 
advised  to  conceal  them  within  your  own  bosom,  lest 
you  might  expose  yourself  to  the  vengeance  of  the  new 
and  merciless  despotism.  For  my  own  part,  sir,  I  never 
could  adopt  this  doctrine.  I  have  from  my  infancy  ador- 
ed the  principles  upon  which  the  American  constitution 
is  founded,  and  under  that  constitution  I  doubt  the  pos- 
sibility of  a  case  in  which  any  officer  of  the  government, 
however  high  his  station,  however  pure  his  character, 
-can  be  justified  in  a  departure  from  the  written  laws  of 
his  country;  much  less  in  a  flagrant,  and  what  appears 
to  me,  a  wanton  and  unnecessary  violation  of  them.  If 
sou  once  admit  such  a  principle  as  this,  you  lay  the 
foundation  for  despotism;  and  may  bid  adieu  to  liberty 
and  the  reign  of  law — you  put  it  in  the  power  of  any 
ambitious  man,  of  any  idol  of  the  people,  of  any  power- 
ful military  chief,  to  suppose  such  a  case,  to  imagine  pub- 


proceedings  at  New  Orleans.  401 

lie  danger,  make  it  a  pretext  to  trample  your  laws  under 
foot — seize  upon  your  government,  administer  it  awhile 
according  to  his  own  fancy,  and  finally  erect  upon  its 
ruins  just  such  a  system  as  Caesar  did  in  Rome;  as  Bo- 
naparte has  dene  in  France.  In  this  way  all  the  govern- 
ments in  the  world  have  been  overturned;  and  in  this 
way,  if  you  countenance  such  doctrines,  the  liberties  of 
America  will  be  lost.  What  does  it  matter  to  me,  Mr. 
Chairman,  if  this  be  effected  by  Aaron  Burr  or  James 
Wilkinson.   For  the  sake  of  argument,  however,  I  will 
admit  the  position — /  will  suppose  that  a  case  may  hap- 
pen where  "  the  tardy  process  of  the  law,"  may  be  "  an- 
ticipated"— when  a  governor  may  abandon,  and  a  gene- 
ral of  your  army  may  and  ought  to  usurp   all   power! 
Was  that  our  case?  To  what  real  danger  has  our  coun- 
try been  exposed?  Look  at  Mr.  Burr  in   Kentucky — 
follow  him  down  to  Natchez!   How  many  men  had  he 
ever  collected  together?  What  quantity  of  arms  or  other 
military  stores  do  you  find  him  or  his  associates  in  pos- 
session of?  You  have  heard  of  thirteen  boats  being  seiz- 
ed near  Marietta,  loaded  with  provisions  and  presumed 
to  belong  to  Burr's  party.   Admit  the  fact.    But  how 
many  men  were  on  board  these  boats?  and  what  arms 
had  they?  No  arms  at  all,  and  not  more  men  than  were 
necessary  to  row  these  boats  to  Nachez.  On  the  22d  of 
December  he  leaves  Nashville  with  two  boats;   at  the 
mouth  of  Cumberland  he  is  joined  by  eleven  more;  and 
with  this  formidable  force  he  arrives  about  the  1 0th  of 
January,   at  Bayou  Pierre — thirteen  boats   then,   loaded 
with  provisions,  having  on  board  from  fifty  to  one  hun- 
dren  men,  and  about  forty  stand  of  arms,  whi£h  appear 
to  have  been  brought  along  with  them  for  the  purpose 
of  killing  turkies  and  wild  geese  for  this  mighty  army — 
to  oppose  which  you  are  called  upon,  (and  many  of  vou 
have  already  pledged  yourselves)  to  justify  general  Wif- 
Vol.  IT.  3  E 


402  Speeches  on  General  Wilkinson' 's 

kinson  and  governor  Claiborne  in  the  secret  as  well  as 
open  violation  of  every  thing  that  is  dear  to  the  liberties 
of  man.  Many  of  you  have  already  hailed  the  general  as 
the  saviour  of  his  country,  have  bound  yourselves  down 
to  approve  his  conduct,  and  call  upon  us  in  the  face  of 
offended  heaven  and  the  prostituted  rights  of  your  coun- 
try, to  go  along  with  you  by  rejecting  the  memorial. 
Permit  me  to  ask,  sir,  (allowing  every  thing  that  has  been 
said  about  the  nature  and  extent  of  Burr's  plans  to  be 
true)  who  is  intitled  to  that  sacred  epithet?  Who  has 
really  been  the  saviour  of  our  country?  Who  has  defeat- 
ed the  schemes  of  Burr?  Have  the  operations  of  general 
Wilkinson  and  governor   Claiborne  extended  beyond  the 
limits  of  this  territory?  Have  the  dreadful  effects  of  the 
wounds  which  have  been  inflicted  upon  your  constitution 
penetrated  into  the  enemy's  camp?  was  Burros  progress 
arrested?  Was  the  severance  of  the  union,  or  the  invasion 
of  Mexico  prevented  by  concealing  his  plans,  embargoing 
your  shipping,  withdrawing  your  troops  from  the  upper 
country,   demanding  governor  Meade^s  militia,  insulting 
your  courts  of  justice,  denouncing  your  felloxv  citizens 
as    traitors,    arresting    and    transporting    them   without 
even  the  form  of  a  trial,  filing  the  public  mind  with 
constant  alarms,  destroying  the  civil  authority,  or  finally 
by  trampling  under  foot  every  principle  of  justice  and  of 
right?  No,  sir!    You  owe  your  salvation  not  to  general 
Wilkinson  or  govei'tior  Claiborne,  but  to  the  patriotism  and 
integrity  of  the  people  of  Kentucky;  and  to  them  should 
your  altars  be  erected.   You  owe  it  to  that  love  of  liberty 
and  independence;  to  that  attachment  to  their  country;  to 
that  confidence  in  the  honest  administration  of  the  general 
government,  which  glows  in  the  minds  of  our  western 
brethren.    You  owe  it  to  their  love  of  those  sacred  princi- 
ples which  you  have  not  only  seen  torn  from  you  without 
a  murmur,  but  for  the  loss  of  which  you  have  kissed  in 


proceedings  at  New  Orleans.  403 

humiliation  the  ravishefsfeet,  and  wish  to  place  upon  his 
head  a  crown  of  immortal  honour.  If  Burr  had  had  to 
contend  with  such  sentiments  in  Kentucky;  if  he  coidd 
there  have  usurped  with  impunity  the  powers  which  your 
superiors  have  done  here,  what  would  then  have  been  your 
situation?  Who  in  that  case  would  have  been  your  saviour? 
If  general  IVilkinson  had  been  upon  the  Sabine;  if  he  and 
his  xvhole  army,  however  brave  and  loyal  they  may  be,  had 
been  in  the  remotest  corner  of  the  globe,  Burr  never  could 
have  succeeded.  His  lawless  schemes  tvould  have  been  de- 
feated as  they  have  already  been.  But  had  he  even  suc- 
ceeded in  passing  Natchez  with  his  miserable  force,  what 
would  have  been  his  fate  here?  Ask  your  boys  and  your 
women  in  the  streets.  They  would  have  been  sufficient  to 
have  given  a  good  account  of  him.  But,  sir,  it  has  been 
asked,  xvith  some  triumph,  suppose  general  JVilkinson  in- 
stead of  opposing  him,  had  acted  as  Burr  expected,  and  as 
the  general  says  he  had  a  right  to  expect,  in  concert  with 
him;  what  would  have  been  the  result?  I  leave  this  ques- 
tion to  be  answered  by  the  general's  advocates  themselves; 
and  I  yield  either  to  him  or  to  them,  all  the  adva?itages 
they  can  draw  from  it. 


SPEECH  OF  MR.  ROSS, 

DELIVERED  IN   THE   SENATE  OF    THE   UNITED   STATES,   FEBRU- 
ARY 24th,  1803:  ON  HIS  RESOLUTIONS,  RELATIVE  TO  THE 
FREE  NAVIGATION  OF  THE   MISSISSIPPI. 

T.  HAT  violation  by  the  king  of  Spain,  of  the  treaty  be- 
tween him  and  the  United  States,  commonly  called  the 
occlusion  of  New  Orleans,  attracted  the  attention  of 
congress  in  1803.  The  case  was  briefly  as  follows. 


404  Mr.  Rosses  Speech  on  the 

Spain  holding  the  territory  on  the  west  of  the  Mis- 
sissippi, extending  to  the  Gulf  of  Mexico,  und  on  the 
east  of  it,  south  of  the  southern  boundary  of  the  United 
States  in  the  thirty-first  degree  of  north  latitude,  was 
consequently"  the  proprietor  of  both  sides  of  that  river. 
The  impossibility  of  ascending  the  Mississippi  in  sea- 
vessels,  to  a  height  convenient  to  receive  the  produce  of 
our  western  states,  had  convinced  our  government  of 
the  necessity  of  obtaining  from  Spain  the  right  to  deposit 
their  produce  on  their  territory,  from  whence  it  was 
conveniently  accessibly  by  our  ships,  and  also  of  secur- 
ing to  them  the  free  use  of  this  highway  to  market. 
These  objects  were  obtained  by  the  treaty  concluded 
with  Spain,  the  27th  October,  1795;  by  the  22d  article 
of  which  it  stipulated  that  his  catholic  majesty  will  per- 
mit the  citizens  of  the  United  States,  for  the  space  of 
three  years  from  that  time,  to  deposit  their  merchandize 
and  effects  in  the  port  of  New  Orleans,  and  to  export 
from  thence,  without  paying  any  other  duty,  than  a  fair 
price  for  the  hire  of  the  stores.  And  his  majesty  promised 
thereby  either  to  continue  the  permission,  if  he  found 
during  that  time,  that  it  was  not  prejudicial  to  the  inter- 
ests of  Spain;  or  if  he  should  not  continue  it  there,  to 
assign  them  on  another  part  of  the  banks  of  the  Missis- 
sippi, an  equivalent  establishment. 

In  violation  of  this  treaty  the  intendant  of  New  Orleans, 
the  officer  intrusted  with  the  commercial  concerns  of  the 
province,  did  by  proclamation  in  October  1802,  inter- 
di  t  the  American  right  of  deposit  at  New  Orleans, 
without  assigning  any  other  equivalent  establishment; 
and  the  governor  general  of  Louisiana  explicitly  vindi- 
cated the  measute. 

This  produced  an  immediate  great  loss,  to  a  portion 
of  our  citizens,  and  was  considered  by  many  as  the  com- 


free  Navigation  of  the  Mississippi.  405 

mencement  of  measures  to  deprive  us  entirely  of  a  place 
of  deposit  and  to  obstruct  our  navigation  of  the  river. 

To  enable  congress  to  act  upon  the  subject,  Mr.  Ross, 
on  the  16th  February,  1803:  offered  the  following  reso- 
lutions. 

Resolved,  That  the  United  States  of  America  have  an  indisputable 
right  to  the  free  navigation  of  the  river  Mississippi,  and  to  a  conve- 
nient deposit  for  their  produce  and  merchandize  in  the  island  of 
New  Orleans: 

That  the  late  infraction  of  such  their  unquestionable  right  is  an 
aggression,  hostile  to  their  honour  and  interest: 

That  it  does  not  consist  with  the  dignity  or  safety  of  this  union  to 
hold  a  right  so  important  by  a  tenure  so  uncertain: 

That  it  materially  concerns  such  of  the  American  citizens  as 
dwelt  on  the  western  waters,  and  is  essential  to  the  union,  strength, 
and  prosperity  of  these  states,  that  they  obtain  complete  security  for 
the  full  and  peaceful  enjoyment  of  such  their  absolute  right: 

That  the  president  be  authorized  to  take  immediate  possession  of 
some  place  or  places,  in  the  said  island,  or  the  adjacent  territories, 
fit  and  convenient  for  the  purposes  aforesaid,  and  to  adopt  such  mea- 
sures for  obtaining  that  complete  security,  as  to  him,  in  his  wisdom, 
shall  seem  meet: 

That  he  be  authorized  to  call  into  actual  service  any  number  of 
the  militia  of  the  states  of  South  Carolina,  Georgia,  Tennessee, 
Kentucky,  and  Ohio,  and  the  Mississippi  Territory,  which  he  may 
think  proper,  not  exceeding  50,000.  and  to  employ  them,  together 
with  the  naval  and  military  force  of  the  union,  for  effecting  the  ob- 
ject above  mentioned,  and  that  the  sum  of  five  millions  of  dollars  be 
appropriated  to  the  carrying  into  effect  the  foregoing  resolutions, 
and  that  the  whole  or  any  part  of  that  sum  be  paid  or  applied  on 
warrants  drawn  in  pursuance  of  such  directions  as  the  president 
may  from  time  to  time  think  proper  to  give  to  the  secretary  of  the 
treasury. 

On  the  23d,  these  resolutions  were  taken  into  consi- 
deration. On  the  24th,  Mr.  Wright  of  Maryland  opposed 
the  resolutions  in  a  long  speech;  upon  which  Mr.  Ross 
rose  and  spoke  as  follows. 


406  Mr.  Rosses  Speech  on  the 

Sir, 

The  propriety  of  introducing  these  resolutions  be- 
comes every  day  more  apparent.  Since  they  have  been 
laid  on  the  table,  our  national  councils  have  taken  a  new 
direction,  and  assumed  a  much  more  promising  aspect. 
Until  these  resolutions  were  brought  forward,  there  has 
been  no  military  preparation;  no  proposal  to  detach  mi- 
litia; to  build  arsenals  on  the  western  waters;  to  provide 
armed  boats  for  the  protection  of  our  trade  on  the  Mis- 
sissippi. I  am  happy  in  seeing  gentlemen  on  the  opposite 
side,  pursuing  a  more  vigorous  course  than  they  were 
at  first  inclined  to  adopt,  and  I  hope  they  will,  before 
long,  consent  to  take  stronger  and  more  effectual  mea- 
sures for  the  security  of  what  is  in  hazard. 

As  I  have,  on  a  late  occasion,  stated  at  large  my  rea- 
sons for  presenting  these  resolutions,  I  will  not  detain 
the  senate  with  a  repetition  of  them,  except  where  they 
have  been  misrepresented  or  distorted  during  the  debate. 
I  cannot  suppose  that  any  gentleman  would  intentionally 
mistate  what  has  been  said;  but  it  was  very  certain  that 
sentiments  and  assertions  have  been  ascribed  to  me,  in 
the  course  of  the  discussion,  not  warranted  by  any  thing 
I  have  advanced. 

Every  gentleman  who  has  spoken  in  this  debate,  ex- 
cepting the  honourable  gentleman  from  Maryland  (Mr. 
Wright)  admits  that  the  United  States  have  an  indispu- 
table right  to  the  free  navigation  of  the  river  Mississippi, 
and  to  a  place  of  deposit  in  the  island  of  New  Orleans. 
All  agree  that  this  right  is  of  immense  magnitude  and 
importance  to  the  western  country.  All  agree  that  it  has 
been  grossly  and  wantonly  violated — and  all  agree,  that 
unless  the  right  be  restored  and  secured,  we  must  and 
will  go  to  war.  Upon  what  then  do  we  really  differ? 
Upon  nothing  but  the  time  of  acting.  Whether  we  shall 
take  measures  for  immediate  restoration  and  security,  or 


free  Navigation  of  the  Mississippi.  407 

whether  we  shall  abstain  from  all  military  preparation, 
and  wait  the  issue  of  negotiation.  There  is  no  disagree- 
ment but  upon  this  point;  for  if  negotiation  fails,  every 
man  who  has  spoken  has  pledged  himself  to  declare  war. 

A  number  of  the  objections  made  against  the  adoption 
of  measures  we  have  proposed,  deserve  to  be  noticed. 

The  honourable  gentleman  from  New  York  (Mr.  Clin- 
ton) when  composing  his  speech,  has  made  an  elaborate 
research  into  ancient  and  modern  history,  for  the  purpose 
of  showing  what  had  been  the  practice  of  nations.  He  has 
collected  all  the  objections  together  and  classed  them  un- 
der three  heads.  Other  gentlemen  who  have  spoken  in  op- 
position have  taken  nearly  the  same  ground,  and  made  in 
substance  the  same  objection:  I  will,  therefore,  follow  the 
arrangement  made  by  the  honourable  gentleman  (Mr.  Clin- 
ton) and  I  am  persuaded  that  it  will  be  easy  to  show,  he  has 
in  many  instances  mistaken  the  most  material  features  of 
the  authorities  he  has  adduced,  and  more  than  once  mis- 
stated the  positions  which  I  undertook  to  refute.  He  has, 
however,  admitted  the  magnitude  of  the  right,  that  it  has 
been  violated,  and  that  if  negotiation  should  fail  we  must 
go  to  war.  He  has  made  objections  under  these  three  heads 
and  insisted: 

1st.  That  the  infraction  may  be  unauthorized. 

2d.  That  negotiation  ought,  in  all  cases,  to  precede  the 
employment  of  force. 

3d.  That  reasons  of  policy  should  dissuade  us  from 
using  force  at  present,  even  supposing  we  have  just  cause 
of  immediate  war. 

The  first  objection  has  already  been  amply  refuted  by 
the  gentlemen  from  New- Jersey  (Mr.  Dayton),  the  gentle- 
man from  Massachusets  (Mr.  J.Mason),  and  the  gentleman 
from  Delaware  (Mr.  White).  I  will  only  remark  in  addi- 
tion that  whether  authorized  or  not,  is  not  now  very  mate- 
rial. If  authorized,  the  temper,  the  design  must  certainly 


408  Mr.  Ross's  Speech  on  the 

be  that  of  an  enemy,  and  you  should  act  accordingly.  If 
unauthorized,  seize  the  culprit  and  send  him  home  to  his 
master,  who  will  punish  him  for  a  breach  of  duty-  Let  him 
answer  with  his  head  for  embroiling  two  friendly  nations 
who  wish  to  live  in  peace.  Why  wait  till  you  send  three 
thousand  miles  and  enquire  whether  he  had  orders  or  not. 
He  is  visibly  a  wrongdoer:  remove  him,  and  protect  what 
he  would  wrest  from  you.  No  man  when  proceeding- on  the 
highway  to  market,  and  stopped  by  his  neighbour's  ser- 
vant, would  send  out  into  the  countrv  to  enquire  whether 
his  master  had  authorized  the  outrage.  No,  he  would  pu- 
nish and  remove  the  aggressor  and  proceed  on  his  jo  irney, 
leaving  the  circumstance  of  orders,  or  no  orders,  to  be  set- 
tled between  himself  and  the  master  afterwards.  Besides, 
in  this  instance,  the  person  inflicting  the  injury  declares  he 
has  no  right  to  the  country.  If  so,  why  make  enquiry 
whether  he  has  orders?  No  orders  could  give  him  autho- 
rity to  interfere  with  your  unquestionable  right,  where  his 
master  pretends  to  no  right  himself. 

Under  this  head  of  aggression  and  spoliation,  the  sena- 
tor from  New- York  (Mr.  C  )  in  a  tone  and  manner  not 
very  decorous  in  debate,  has  declared  it  to  be  within  my 
knowledge,  that  indemnity  has  been  provided  by  Spain 
for  the  spoliations  committed  upon  our  trade;  and  yet  the 
assertion  has  been  made  that  Spain  has  refused  all  redress 
for  injuries  of  that  kind;  while  the  honourable  gentleman 
alludes  to  documents  before  the  senate  which  are  now  under 
the  injunction  of  secrecy. 

Sir,  I  have  seen  those  documents,  and  I  now  repeat  and 
re-assert,  that  I  know  nothing  to  warrant  the  opinion  or 
belief  that  Spain  will  make  compensation  for  all  spoliations 
of  our  merchants,  or  for  the  greater  part  or  mass  of  them. 
I  certainly  never  did  say  that  Spain  had  refused  all  redress; 
for  it  will  be  recollected  by  all  present,  that  I  expn  ssly 
stated,  the  other  day,  the  injuries  done  to  us  by  the  Spa- 


free  Navigation  of  the  Mississippi.  409 

niards  themselves  in  every  place  they  had  found  our  flag; 
and  that  our  vessels  were  carried  into  their  ports  by 
French  cruisers,  condemned  without  the  semblance  of  a 
trial,  and  our  citizens  thrown  into  prison.  That  if  we  took 
possession  of  the  country  on  the  Mississippi  we  should 
have  an  ample  fund  in  our  hands  to  compensate  all  our 
merchants  who  had  suffered  from  the  conduct  of  the 
Spaniards:  That  the  merchants  would  willingly  accept 
such  an  advantageous  offer:  and  that  otherwise  there  was 
no  reason  to  hope  that  they  would  all  be  indemnified:  and  I 
now  return  to  that  gentleman  his  own  words,  that  he  does 
know,  and  must  be  sensible,  from  die  very  documents  he 
has  alluded  to,  that  there  is  little  if  any  hope  that  the  great 
body  of  injuries  and  losses  sustained  by  our  merchants 
from  the  Spaniards  in  different  quarters  of  the  world,  and 
the  conduct  of  the  French  in  Spanish  ports,  will  ever  be 
compensated  or  paid  by  Spain,  unless  in  the  mode  that  I 
had  suggested. 

The  same  gentleman  has  said,  that  we  have  no  facts 
respecting  Spanish  spoliation  authenticated  and  reported 
to  us,  and  offers  this  as  a  further  reason  for  delay  and  ne- 
gotiation. The  facts  of  spoliation,  and  vexatious,  oppres- 
sive conduct  towards  our  merchants,  and  seamen,  as  well 
on  the  sea  as  within  the  jurisdiction  of  the  Spanish  govern- 
ment, both  in  Europe  and  America,  are  so  notorious  and 
of  such  extent  and  continuance,  that  no  man  can  really 
doubt,  or  with  truth  deny  the  aggravated  series  of  outrage 
and  oppression  which  we  had  experienced.  Although  the 
executive  or  other  officers  of  government  may  not  have 
collected  and  reported  these  complaints  to  this  house,  yet 
this  forms  no  excuse  for  the  aggressors,  much  less  a  rea- 
son why  we  should  abstain  from  giving  attention  to  them 
while  considering  indignities  of  another  description.  But, 
that  the  gentleman  may  never  again  be  able  to  say  that  he 
had  met  with  no  authenticated  case  of  spoliation  by  the 

Vol.  II.  3  F 


410  Mr.  Rosses  Speech  on  the 

Spaniards,  I  will  now  produce  and  read  one  to  the  senate, 
which  has  been  d  livered  to  me  for  the  purpose  of  obtain- 
ing the  aid  of  our  government  to  get  reparation.  The  men 
who  have  been  robbed,  were  industrious  inhabitants  of 
the  western  country,  who  lived  near  Pittsburgh.  They 
descended  the  Mississippi  with  a  cargo  of  flour,  and  find- 
ing but  a  low  market  at  New  Orleans,  shipped  their  flour 
on  board  of  an  American  vessel,  and  after  being  two  or 
three  days  at  sea,  were  taken  by  Spanish  vessels,  carried 
into  Campeachy,  their  flour  sold,  their  captain  cast  into 
prison,  themselves  restrained  of  their  liberty;  nay,  sir, 
several  of  them  died  in  their  captivity;  and  those  who 
returned  home  had  no  allowance  made  to  them  by  the 
Spaniards  for  their  property  thus  unjustly  captured,  and 
of  course  they  only  returned  to  witness  the  ruin  of  their 
families  by  a  loss  of  property  which  they  had  not  the 
means  of  paying  for,  having  purchased  on  credit.  There 
can  be  no  excuse  for  the  capture;  these  men  lived  in  the 
interior  country,  they  were  cleared  out  from  a  Spanish  port, 
in  an  American  vessel:  yet  all  these  circumstances  could 
not  save  them  from  the  rapacity  of  the  Spaniards. 

[Here  Mr.  R.  read  the  protest  of  several  American 
citizens  before  Mr.  Morton,  the  American  consul  at  Ha- 
vanna,  stating  the  capture  of  their  vessel,  their  captivity 
at  Campeachy,  the  loss  of  all  their  property,  and  that  they 
lived  in  the  western  country,  from  which  they  had  gone 
down  the  Ohio  with  this  flour  to  New  Orleans.] 

Herein  is  a  case  of  prodigious  hardship  and  oppression 
arising  out  of  the  very  trade  and  intercourse  which  the 
Spaniards  have  at  last  undertaken  to  obstruct  and  destroy: 
and  therefore  I  think  it  proper  to  be  brought  forward  dur- 
ing this  discussion,  to  show  the  temper  and  the  conduct 
of  these  people  towards  us  before  they  had  proceeded  to 
the  last  extremities. 

The  second  objection  taken  by  the  gentleman  from 


free  Navigation  of  the  Mississippi.  41 1 

New  York  (Mr.  C.)  and  indeed  by  all  who  have  spoken 
against  die  resolutions,  amounts  to  this:  That  every  nation 
is  bound  to  demand  satisfaction  for  an  injury  before  it 
employs  force  for  redress;  and  that  a  refusal  of  satisfaction 
must  precede  the  use  of  force. 

However  humane  or  salutary  the  general  principle  may 
be,  certainly  it  does  not  hold  universally,  or  to  the  extent 
that  gentleman  contends.  No  bock,  no  writer  of  authority, 
has  ever  contended  that  this  principle  should  operate  when 
the  essential  rights,  the  well-being,  or  the  peace  of  the 
country  are  exposed  to  danger;  and  the  rule  has  no  appli- 
cation but  to  inferior  or  minor  rights  of  society,  where 
delay  and  negotiation  might  be  safely  resorted  to. — No 
man  can  reasonably  say,  that  this  rule  would  hold  where 
an  army  was  marching  to  your  frontier  or  landed  upon 
your  territory;  or  a  fl^et  was  blockading  your  harbours, 
or  demanding  contribution  from  your  sea-ports. — Such 
cases  admit  of  no  negotiation:  the  intention  of  the  assailant 
is  manifest,  the  danger  imminent,  and  immediate  use  of 
force  and  hostility  unavoidable  by  the  most  peaceable  na- 
tion. It  will  be  said  that  these  are  extreme  cases  and  only 
form  exceptions  to  the  general  rule. — They  certainly  de- 
monstrate that  the  rule  is  not  so  general  as  gentlemen 
contend  for,  and  when  the  case  at  present  under  consider- 
ation is  carefully  examined,  it  will  be  found  among  those 
essential  and  all  important  rights  of  the  nation,  which, 
when  attacked,  demand  that  immediate  force  should  be 
employed  to  repel  the  assailant.  In  cases  of  invasion,  the 
mere  possession  of  a  small  portion  of  your  soil,  is  not  the 
primary  consideration;  you  are  impressed  with  the  ap- 
proach of  further  and  more  serious  injury.  The  hostile 
intention  is  manifest,  the  act  such  as  to  leave  no  doubt, 
and  your  right  such  as  can  never  be  abandoned.  So  here, 
though  there  be  no  actual  aggression  within  the  limits  of 
your  territory,  yet  you  have  a  territorial  right  attached  to 
your  soil  and  constituting  its  only  value,  which  is  directly 


412  Mr.  Rosses  Speech  on  the 

attacked  and  destroyed.  Of  what  value  is  the  territory 
when  stripped  of  this  right?  Where  is  your  independence, 
where  is  your  sovereignty  in  that  country  without  the  un- 
restrained exercise  of  this  right?  Without  it  the  mere  soil 
is  of  no  value.  It  is  an  attribute  inseparable  from  the  sub- 
stance. To  attack  it,  is  to  attack  your  very  existence,  for 
it  is  the  great  artery  of  the  western  country,  a  stoppage  in 
the  circulation  through  which,  endangers  convulsion  and 
political  death.  The  destruction  of  this  right  is  a  greater 
calamity  than  a  blockade  of  a  sea-port,  or  even  a  landing 
on  the  Atlantic  coast.— -The  mischief  is  incurable.  Shall 
it  then  be  -^aid,  when  this  vital  part  of  the  nation  is  assailed, 
that  you  ought  to  wait  for  information  of  the  intent?  Will 
you  not  enquire  into  the  motives?  Will  you  not  employ 
force  to  resist  the  attack,  although  you  may  be  undone 
before  you  can  receive  an  answer^  Will  you  hazard  con- 
vulsion and  dissolution,  because  possibly  the  aggressor 
has  reasons  to  offer  for  the  outrage  that  you  do  not  yet 
know? — This  cannot  be  wise,  it  cannot  be  the  course 
which  national  honour  or  safety  calls  upon  us  to  pursue; 
because  you  never  can  abandon  the  right  now  denied  and 
wrested  out  of  your  hands;  you  can  no  more  abandon  it, 
than  any  other  portion  of  country  within  your  territorial 
limits,  when  invaded  by  an  enemy. 

But  in  whose  favour  is  this  delay  asked?  With  whom 
are  you  going  to  negotiate  for  reparation  of  the  injury? 
Why,  with  those  who,  by  their  own  confession,  have  no 
right  in  the  country  from  which  they  exclude  you.  When 
you  inquire  of  the  court  of  Spain  what  has  led  them  to  this 
outrage,  they  may  reply,  we  know  and  care  nothing  about 
it;  that  country  is  no  longer  our's,  we  have  abandoned 
all  claim  to  it,  and  ordered  our  officers  to  withdraw. — 
The  title  is  now  in  another.  Will  this  satisfy  you?  Will 
this  redress  the  injury?  Where  will  you  go  next?  Or  how 
long  will  you  wait  for  an  answer  to  the  question  of  who 
t«rned  us  out  of  doors  and  keeps  us  out?  You  have  the 


free  Navigation  of  the  Mississippi.  413 

same  reasons  for  a  second  as  for  the  first  delay;  and  in  the 
meanwhile  you  are  out  of  actual  possession,  and  the  wrong- 
doer is  in. 

But,  sir,  we  are  triumphantly  told,  that  it  has  been  the 
practice  of  all  civilized  nations  to  negotiate  before  they  go 
to  war.  Round  assertions,  like  general  rules,  are  always  to  be 
received  with  exceptions  and  great  allowance.  I  dispute  the 
fact;  although  my  argument  does  not  need  this  kind  of 
aid;  for  I  am  persuaded  there  is  no  precedent  of  an  inde- 
pendent nation  relying  upon  negotiation  alone,  in  such 
circumstances.  If  you  go  to  books,  or  to  the  example  of 
other  countries,  you  will  find  no  dictum  of  a  writer,  nor 
instance  of  a  state,  that  will  justify  the  course  now  held 
by  gentlemen  on  the  other  side.  For  wherever  the  nation 
has  been  invaded,  its  vital  interests  attacked,  its  existence 
drawn  into  hazard,  its  essential  rights  exposed  to  immedi- 
ate destruction,  every  writer  and  every  state  will  bear  you 
out  in  resorting,  without  delay,  to  the  strongest  means  in 
your  power  for  repelling  the  aggressor. 

The  conduct  of  the  Romans  has  been  more  than  once 
mentioned — Their  history  is  handed  down  to  us  by  them- 
selves, and  even  in  that  we  shall  too  often  find,  that  while 
their  ministers  of  peace  were  affecting  to  demand  repara- 
tion, the  consul  had  advanced  with  his  eagles  to  the  iron- 
tier,  and  was  ready  to  enter  the  country  where  the  nego- 
tiation was  pending;  we  shall  find  that  they  negotiated 
often  and  long,  when  it  did  not  suit  them  to  commence  an 
immediate  attack;  and  the  negotiations,  especially  when 
at  a  distance,  were  protracted,  until  their  armies  had  been 
recruited,  wars  nearer  home  ended,  and  every  thing  ready 
to  strike  a  decisive  blow. — But  you  have  no  instance  of 
negotiation  without  military  preparation,  where  the  Roman 
territory  was  invaded,  or  a  Roman  treaty  violated. 

Leaving  antiquity,  the  honourable  gentleman  (Mr.  C.) 
has  adduced  and  extolled  the  example  of  England  in  mo- 


414  Mr.  Ross's  Speech  on  the 

dern  times,  and  traced  her  through  many  scenes  both  of 
negotiation  and  war.  But  he  did  not  dwell  upon  her  con- 
duct in  the  beginning  of  the  war  of  1756,  when  all  the 
commerce  of  France  was  destroyed  by  a  general  sweep, 
without  a  previous  declaration  of  war;  and  yet  this  was 
so  certainly  the  case,  that  the  gentleman  must  well  remem- 
ber it  formed  a  subject  of  complaint,  and  was  used  to  pro- 
tract the  negotiation  for  a  general  peace  in  1763. — He  has 
also  forgotten  their  conduct  towards  the  Dutch  during  our 
revolutionary  war;  and  their  late  armament  against  the 
Danes. — His  comments  also  upon  the  conduct  of  their 
ministry  in  1762,  are  peculiarly  unfortunate,  because  we 
know,  that  the  nation  was  afterwards  actually  obliged  to 
declare  war  against  Spain,  when  she  had  full  notice  of  their 
intention,  and  time  to  prepare  for  the  attack;  whereas  had 
war  been  waged  when  the  hostility  of  Spain  and  her  secret 
alliance  with  France  were  first  ascertained,  they  would 
have  possessed  prodigious  advantages  which  were  lost  by 
ineffectual  negotiation  and  delay. 

I  will  not  follow  the  gentleman  to  Nootka  Sound,  to  the 
Bay  of  Honduras,  or  the  Musquito  Shore;  but  I  will  at 
once  admit,  that  in  cases  of  n;inor  rights,  of  spoliation 
upon  commerce  in  time  of  war,  nay  in  all  cases  that  do  not 
involve  the  well  being,  or  national  independence,  negotia- 
tion and  amicable  adjustment  should  be  resorted  to;  and 
demand  of  reparation  should  precede  actual  hostility.  I  will 
even  say,  that  were  the  Spaniards  to  cross  the  Mississippi 
at  the  Falls  of  St.  Anthony  and  build  a  fort  on  our  side  of 
the  river,  place  a  garrison  in  it,  and  thus  actually  invade 
our  territory;  in  my  opinion  we  ought  to  negotiate  and 
demand  explanations  before  we  sent  troops  to  demolish 
the  fort.  Although  the  act  would  justify  the  immediate  use 
of  force,  yet  the  station  is  so  remote,  and  of  so  little  im- 
portance in  the  use  of  it,  that  friendly  means  might  be 
safely  and  wisely  resorted  to  in  the  first  instance. 


free  Navigation  of  the  Mississippi.  415 

Quitting  Europe,  the  gentleman  exultingly  appeals  to 
the  usages  of  our  own  country,  in  cases  which  he  alleges 
were  either  similar  to,  or  stronger  than  the  present.  The 
name  of  W a shington  is  introduced  to  silence  all  further 
dispute  on  this  question! — Sir,  I  reverence  the  authority 
of  that  great  man's  official  conduct. — He  was  the  father  of 
his  country,  the  terror  of  its  enemies,  and  the  ornament  of 
human  nature.  He  is  now  gone  to  mix  with  the. heroes  and 
sages  of  other  times  and  nations  in  a  happier  world;  but  to 
was  easily  foreseen  that  those  who  seldom  agreed  with  him 
in  his  life,  would  be  the  first  after  his  death,  to  fly  for  shel- 
ter to  his  example,  when  overtaken  by  calamity  or  mis- 
fortune! That  man  led  the  armies  of  this  country  to  vic- 
tory— to  independence.  He  knew  better  than  any  man 
the  interests,  the  feelings,  the  dispositions  of  the  people. — 
He  witnessed  the  origin  and  progress  of  complaints  on  both 
sides  respecting  the  inexecution  of  the  treaty  of  peace 
between  us  and  Great  Britain.  We  justly  reproached  them 
with  detention  of  the  western  posts,  and  their  refusal  to 
deliver  our  slaves,  as  stipulated  by  treaty: — They  replied 
that  we  did  not  pay  them  our  old  debts.  These  disputes 
became  the  subject  of  negotiation,  under  the  old  confede- 
ration, and  we  had  a  minister  in  that  country  who  attempt- 
ed an  amicable  adjustment.  When  General  Washington 
came  to  the  head  of  our  present  government,  he  sent  ano- 
ther minister  to  that  country,  and  while  he  was  endeavour- 
ing a  peaceable  accommodation,  a  storm  broke  out  in 
France,  which  soon  spread  beyond  its  own  boundaries, 
and  involved  the  neighbouring  nations  in  war.  The  rulers 
of  France,  wishing  to  engage  us  in  their  quarrel,  sent  a 
minister  to  this  country  with  express  instructions  to  em- 
broil us,  if  possible,  in  this  desolating  war.  Unfortunately 
that  minister  possessed  abilities  and  disposition  well  adapt- 
ed to  such  a  mission.  He  landed  in  a  part  of  our  country 
remote  from  the  seat  of  government,  and  instantly  began 


416  Mr,  Ross's  Speech  on  the 

to  issue  his  commissions  to  our  citizens  not  only  to  equip 
privateers  and  plunder  the  commerce  of  nations  with  whom 
we  were  at  peace,  but  to  inlist  men  and  raise  a  military- 
force  within  the  United  States,  for  the  purpose  of  attacking 
the  possessions  of  Spain  in  Florida.  He  travelled  onward 
from  Charleston  towards  the  seat  of  government,  making 
proselytes  as  he  advanced,  and  gaining  new  adherents  at 
every  step  of  his  journey.  He  was  received  with  acclama- 
tions of  the  liveliest  joy  in  the  capital  city  of  this  country, 
and  after  employing  all  the  soothing  art  of  fraternization, 
civic  feasts,  and  public  spectacles,  he  proceeded,  as  before, 
with  his  commissions,  and  actually  insisted  upon  and  ex- 
ercised the  right  of  bringing  into  our  ports  and  selling 
prizes  taken  from  nations  with  whom  we  were  at  peace. 
This  minister  had  the  address  to  seduce  many  of  our  citi. 
zens  to  inlist  under  his  banner;  and  but  too  many,  even  of 
our  respectable  men  in  high  employment,  applauded  his 
conduct  and  gave  his  measures  a  countenance  they  did  not 
deserve.  All  ranks  seemed  pleased  with  the  zeal  and  the 
boldness  of  the  minister's  mind,  and  an  union  of  this  coun- 
try with  France  in  the  war  seemed  inevitable,  as  no  effec- 
tual steps  had  been  taken  to  restrain  this  wild,  extravagant 
condition  of  things  among  us.  I  mention  not  these  events 
with  a  wish  to  hurt  the  sensibility  of  any  one,  for  I  know 
that  this  country  was  then  without  experience;  we  had  ne- 
ver before  been  in  the  relation  of  neutrality  towards  powers 
at  war,  and  we  entertained  a  lively  affection  for  France,  be- 
cause she  had  aided  us  in  the  revolution  war,  and  was  then, 
as  we  thought,  contending  for  liberty  herself.  The  respec- 
table men  who,  led  away  by  their  feelings,  joined  in  the 
phrenzy  of  that  time,  would  not  now  display  such  opinions, 
or  enter  upon  any  public  act  to  commit  or  endanger  the 
peace  and  honest  neutrality  of  their  country. 

Very  unfortunately,  however,    we  had  then  here  a  mi- 
nister from  Great  Britain  who  was  but  little  inclined  to  pro- 


free  Navigation  of  the  Mississippi.  417 

mote  good  understanding,  and  who  probably  transmitted 
discoloured  accounts  of  all  that  passed  from  day  to  day. 
Things  were  sufficiently  wrong  without  any  exaggeration 
of  their  enormity.  When  the  accounts  reached  England, 
was  it  wonderful  that  they  considered  war  as  begun?  Was 
it  strange  that  they  should  count  upon  hostility,  when  the 
acts  of  the  people  assumed  but  one  complexion;  when  the 
government  had  not  taken  means  to  do  justice  and  prevent 
such  injustice;  where  their  ships  were  sold  by  their  ene- 
mies, and  every  indignity  put  upon  their  subjects?  Hence 
we  may  trace  the  orders  for  spoliations;  hence  the  talk  of 
Lord  Dorchester  to  the  Indians,  and  the  other  aggressions 
on  the  western  frontier,  which,  however  unjustifiable, 
were  not  altogether  without  provocation. 

In  the  meanwhile,  the  French  minister  increased  in  his 
activity  and  boldness  of  enterprise,  under  die  very  eye  of 
our  government;  he  multiplied  his  complaints  against  the 
executive,  and  his  caresses  and  professions  upon  the  peo- 
ple, until  at  last,  confident  in  his  numbers  and  support,  he 
set  the  president  at  defiance,  and  threatened  an  appeal  to 
the  people.  At  that  awful  crisis  of  delusion,  Washing- 
ton came  forward,  Moses  like,  and  put  himself  in  the  gap 
between  the  pestilence  and  the  people. — He  demanded  the 
minister's  recal,  and  he  effected  it.  He  arrested  the  hands 
of  our  citizens  who  were  armed  to  plunder  in  time  of 
peace — he  enforced  the  observation  of  the  rules  of  justice 
and  neutrality.  When  these  things  became  known  in  Eng- 
land, they  produced  a  revocation  of  the  orders  to  plunder 
our  merchants.  But  the  havoc  and  destruction  had  been 
dreadful;  we  were  highly  and  justly  incensed,  the  blood  of 
both  nations  was  up — it  had  scarcely  cooled,  and  was  easi- 
ly roused  to  be  ready  for  war.  If  the  British  had  not  re- 
called their  orders  of  November,  1,9>,  we  undoubtedly 
should  have  gone  to  u  ar. — It  would  have  been  unavoida- 
bly, nav  absolutely  necessary.   But  when  the  revocation  of 

Vol.  II.  3  G 


418  Mr.  Ross's  Speech  on  the 

those  orders  was  known  here,  our  president  considered  that 
our  own  conduct  had  not  been  perfectly  regular;  there 
was  some  cause  of  complaint  against  us,  in  the  midst  all 
the  just  complaints  we  had  against  the  British  cruisers; 
there  were  also  old«differences  which  had  created  great  un- 
easiness between  the  two  countries  In  the  recent  causes 
of  quarrel  we  had  been  the  first  in  suffering  improper  acts 
to  be  done  by  a  foreign  agent  within  our  own  territory, 
which  we  ought  to  have  prevented  as  neutrals. — Under  all 
these  circumstances,  being  already  engaged  in  an  Indian 
war,  he  resolved  to  try  negotiation. — An  envoy  extraor- 
dinary was  accordingly  sent. 

How  does  all  this  apply  to  the  present  case?  There  had 
been  old,  unsettled  differences  with  England — our's 
with  Spain  were  settled  by  the  treaty  of  1795.  There 
were  horrible  spoliations  upon  our  trade  by  Britain,  but 
we  had  permitted  acts  towards  them  with  which  we  were 
obliged  to  reproach  ourselves.  Spain  has  also  spoiled  our 
commerce,  and  to  an  immense  extent,  without  provocation. 
For  that,  the  case  of  England  would  say  negotiate,  and  we 
have  actually  been  negotiating.  But  had  England  block- 
aded your  harbours,  had  she  shut  out  half  a  million  of 
your  people  from  access  to  the  ocean,  had  she  closed  up 
the  Chesapeake  or  the  Delaware,  would  there  have  been 
negotiation?  No.  You  would,  you  must  have  had  imme- 
diate war.  Such  an  invasion  of  the  sovereignty  and  inde- 
pendence of  the  country  would  have  left  no  hesitation  in 
the  mind  of  any  man;  but  fortunately  as  our  affairs  then 
stood  we  were  not  obliged  to  resort  to  hostilities.  The 
man  of  high  talents  w?ho  undertook  to  negotiate,  succeed- 
ed in  forming  a  treaty  between  the  two  countries. — Such, 
however,  were  the  passions  of  the  times,  that  the  negotia- 
tor was  grossly  calumniated.  The  treaty  was  opposed  by 
the  formidable  array  of  all  the  artillery  of  popular  opinion 
organized  in  town  meetings,  played  off  along  the  coast 


free  Navigation  of  the  Mississippi.  419 

from  Boston  to  Charleston,  under  the  direction  of  the 
ablest  engineer  in  this  countrjr.  Public  opinion  was  again 
shaken,  but  finally  peace  was  preserved,  the  treaty  went 
fairly  into  execution,  and  even  the  negotiator  was  elected 
their  governor,  by  the  people  of  his  own  state,  where  he 
presided  for  a  long  time  with  honour  to  himself  and  infi- 
nite advantage  to  the  interests  and  peace  of  society, 
until  at  length  he  retired  from  public  life,  leaving  an  ex- 
ample which  will  always  be  useful  for  imitation,  and 
serve  at  the  same  time  as  a  severe  reproof  to  those  who 
may  materially  depart  from  it. 

Our  differences  and  negotiations  with  England,  then, 
furnish  an  interesting  and  serious  view  of  the  course  we 
have  taken  in  troublesome  times,  but  certainly  do  not 
present  any  thing  like  the  present  case.  For  although  they 
actually  held  our  western  posts  and  built  a  new  fort  at 
the  foot  of  the  rapids  of  Miami,  yet,  we  had  never  been  in 
possession  of  those  posts,  we  had  not  purchased  the  coun- 
try from  the  Indians,  we  had  no  settlements  near  to  it,  no 
great  portion  of  our  citizens*  were  obstructed  or  cut  oft' 
from  the  free  exercise  of  their  rights,  and  there  were  mu- 
tual complaints,  perhaps  mutual  enquiries,  between  the 
parties,  which  seemed  to  require  negotiation  as  the  only 
mode  in  which  they  could  ever  be  terminated. 

Next  comes  our  difference  with  Spain.  To  this  it  may 
be  answered  briefly: — That  we  made  a  treaty  with  that 
power;  difficulties  arose  respecting  the  execution  of  that 
treaty;  we  had  not  then  been  in  the  possession  or  exercise 
of  the  rights  claimed  under  the  treaty.  The  Spaniards 
delayed  and  evaded  the  execution,  in  a  very  unjustifiable 
manner.  But  the  administration  of  that  day  did  not  rely 
upon  negotiation  alone;  they  ordered  troops  to  the  Ohio, 
and  had  the  Spaniards  persisted  in  their  refusal,  those 
troops  would  have  acted  decisively,  without  any  new  ap- 
plication to  the  court  of  Spain.  They  saw  the  approach- 


420  Mr.  Rosses  Speech  on  the 

ing  storm;  they  entered  upon  the  execution  of  the  treaty, 
by  running  the  line,  and  giving  up  the  posts;  and,  if  the 
war  office  be  examined,  gentlemen  will  find  that  our  troops 
were  then  so  disposed  as  to  fall  down  the  river  Missis- 
sippi, and  act  with  effect,  at  any  moment.  It  was  well 
known  to  us  that  Spain  did  not  act  in  that  business  from 
the  mt  re  impulse  of  her  own  interests  or  wishes.  She 
was  then,  and  is  still,  under  the  irresistible  influence  of  a 
powerful  neighbour,  with  whom  we  at  that  time  had  seri- 
ous differences — she  was  urged  and  pushed  forward  by 
France.  For  Spain,  until  she  became  thus  dependent  upon 
France,  has  ranked  high  for  her  good  faith,  and,  in  my 
opinion,  deservedly  higher  than  any  other  court  in  Europe. 
Slow  to  promise,  she  has  always  fulfilled  her  engagements 
with  honour,  according  to  the  spirit,  without  cavilling 
about  the  words  of  her  treaties. 

When  we  were  aware  of  all  these  things,  when  there 
was  no  absolute  refusal,  but  only  delay  and  evasive  ex- 
cuses about  the  execution,  not  about  the  right,  it  would 
not  have  been  wise  to  precipitate  an  absolute  rupture  be- 
tween the  two  countries. 

The  proceedings  with  France  are  next  adduced.  These 
are  fresh  in  the  memory  of  every  one,  and  need  not  be 
repeated.  There  was  no  blockade,  no  denial  of  egress  to 
the  ocean,  no  invasion,  no  territorial  dismemberment,  no 
attack  upon  the  country  which  required  the  immediate 
use  of  force.  True,  they  captured  your  ships,  they  heap- 
ed indignities  upon  you;  but  they  also  alleged  that  you 
had  first  broken  the  treaty  of  alliance.  You  negotiated: 
what  else  could  you  do?  You  had  no  navy.  You  could 
not  go  in  quest  of  them,  and  they  did  not  attempt  to  land 
on  your  shores.  When  their  aggressions  rose  to  such  a 
height  as  to  be  tolerated  no  longer,  and  defensive  war 
was  resolved  on,  what  was  the  conduct  of  the  minority 
then?  Did  they  come  forward  and  offer  their  support  like 


free  Navigation  of  the  Mississippi.  421 

the  minority  now?  No,  sir:  they  declared  the  administra- 
tion was  blameable;  that  the  French  had  been  provoked; 
that  peace  was  still  attainable  by  negotiaiion,  and  war  at 
all  events  to  be  avoided.  Look  at  the  debates  of  that  day, 
and  you  will  discover  that  many  leading  men  contended 
that  our  own  government  was  altogether  in  the  wrong, 
and  France  in  the  right.  Such  was  the  impression  abroad, 
that  Talleyrand  insultingly  boasted  of  a  party  in  our  own 
country,  and  threatened  us  with  the  fate  of  Venice;  and 
when  the  sacred  right  of  embassy  was  trampled  upon,  as 
stated  by  the  honourable  gentleman  from  New- York, 
still  the  cry  at  home  was  negotiate,  negotiate.  Surely 
there  is  very  little  if  any  resemblance  between  that  case 
and  this.  However  justifiable  a  war  would  have  been  then, 
we  must  have  gone  abroad  to  seek  our  enemy;  now  he  has 
come  to  our  doors,  and  stripped  us  of  what  is  most  pre- 
cious and  dear  to. us  as  an  independent  nation. 

We  are  next  told,  under  the  third  head  of  objections, 
that  our  national  debt  will  be  increased  by  war;  that  war 
will  be  the  necessary  consequence  of  the  resolutions;  that 
our  object  is  war. 

Sir,  our  object  is  not  war,  but  the  attainment  of  secu- 
rity for  a  right,  without  which  our  union,  our  political  ex- 
istence, cannot  continue.  In  seeking  this  security,  should 
war  arise,  it  will  be  a  less  evil  than  insecure  and  delusive 
hopes  of  tranquillity.  No  doubt  war  will  increase  your 
public  debt,  but  not  more,  nor  so  much  as  vain  attempts 
to  secure  this  right  another  way,  and  after  failing  you 
must  have  a  war. 

But  your  merchants  will  not  obtain  indemnities  for 
spoliations.  Their  chance  is  but  precarious  now,  and 
would  be  altogether  as  great  in  the  way  we  propose  to 
take. 

Seaports  will  be  blockaded  and  the  Mississippi  shut. 
The  first  is  not  probable,  and  as  to  the  last,  all  the  western 


422  Mr.  Rosses  Speech  on  the 

people  must  be  satisfied  when  they  see  their  country 
maintaining  and  asserting  their  right.  The  very  effort  to 
maintain  it  will  consume  a  great  portion  of  the  resources 
and  afford  an  extensive  market  to  the  aggrieved  people, 
by  supplying  your  military  force.  The  river  may  as  well 
be  shut  up  completely  as  be  in  its  present  condition. 

An  honourable  gentleman  (Mr.  Wright)  has  said  that 
we  may  have  a  place  of  deposit  within  our  own  territory 
and  navigate  the  river  from  thence. 

The  gentleman  certainly  has  not  well  considered  this 
subject.  The  nearest  point  upon  our  territory  is  three 
hundred  miles  from  the  sea.  The  river  crooked,  the  cur- 
rent rapid,  the  anchorage  bad.  A  favourable  wind  in  one 
direction  of  the  river  would  be  adverse  at  the  next  bend. 
Ships  could  never  ascend  in  any  reasonable  time,  nor 
could  they  gain  any  point  on  our  own  territory  when  they 
are  forbidden  to  touch  the  shore  even  to  fasten  a  cable  or 
towline.  Without  the  privilege  of  the  shore,  the  naviga- 
tion would  be  impracticable. 

The  honourable  gentleman  from  New- York  had  ad- 
vanced a  most  extraordinary  position; — That  if  our  adver- 
saries have  time  to  prepare,  we  also  have  time  to  prepare 
— Yet  he  resists  the  resolutions  and  proposes  no  effectual 
military  preparations.  While  they  are  busy,  we  are  to  be 
idle — When  the}r  make  the  stroke,  we  are  in  our  present 
defenceless  state.  Next  year  we  shall  be  as  weak  and  ex- 
posed as  now,  our  commerce  equally  scattered  over  the 
ocean,  our  seaports  as  defenceless,  our  army  and  navy  as 
weak,  and  they  have  then  possession  of  the  disputed  spot 
with  an  armament  to  annoy  us  and  maintain  their  pos- 
session. 

The  honourable  gentleman  from  Kentucky,  (Mr. 
Breckenridge,)  disclaims  all  apprehension  of  disgust,  or 
disaffection  among  his  constituents,  or  any  of  the  western 
people.  They  were  not  always  in  this  mild,  forbearing 


free  Navigation  of  the  Mississippi.  423 

temper  upon  the  subject  of  the  Mississippi.  It  must  be 
in  the  recollection  of  that  gentleman,  that  Mr.  Genet  sent 
emissaries  into  Kentucky,  distributed  commissions  there 
for  enlisting  men,  and  raising  an  army  to  take  New  Or- 
leans, and  open  the  navigation  of  the  Mississippi  to  the 
western  people.  A  very  gallant  and  able  officer  accepted 
the  commission  of  general  on  this  expedition,  and  would 
undoubtedly  have  executed  it,  had  not  the  recal  of  the 
French  minister,  and  the  failure  of  the  promised  resources 
defeated  the  enterprise.  What  reason  was  there  to  sup- 
pose they  would  be  more  forbearing  now?  That  officer 
was  still  alive,  and  if  he  were  to  erect  his  standard,  the 
consequences  could  not  be  very  doubtful. 

The  honourable  gentleman  from  Georgia,  (Gen.  Jack- 
son,) agrees  with  us  in  every  thing  except  as  to  the  time 
of  acting.  He  wishes  to  make  an  experiment  at  negotia- 
tion, but  admits  the  magnitude  of  the  dispute,  and  that 
it  involves  the  very  existence  of  Georgia  and  the  southern 
states. 

If  the  late  events  had  happened  upon  St.  Mary's,  or  if 
the  Savannah  had  been  shut  up  by  the  Spaniards,  there 
would  have  been  little  doubt  of  the  course  that  gentleman 
would  have  pursued.  The  news  of  the  aggression  and  of 
the  aggressors'  graves  would  have  reached  the  seat  of 
government  by  the  same  mail.  He  would  not  have  waited 
to  enquire  by  whose  orders  they  came  there,  or  whether 
they  could  be  negotiated  out  of  Georgia. 

Although  the  honourable  gentleman  disagrees  with  us 
as  to  the  time  of  acting,  yet  he  has  very  honourably 
pledged  himself  for  the  ultimate  result,  should  negotiation 
fail:  and  while  it  is  impossible  to  agree  with  what  he  has 
said  respecting  the  ordinary  force  of  the  country  driving 
the  new  occupants  from  their  fastnesses  and  forts  in  the 
marshes  of  Florida  or  New  Orleans,  yet,  sir,  there  can  be 
no  doubt  that  the  spirit  which  disdains  to  think  of  the 


424  Mr.  Ross's  Speech  on  the 

hazard  of  such  an  enterprise  is  of  the  urmost  value  to  our 
country.  For  my  own  parr,  I  have  a  pleasure  in  declaring 
my  wish  that  the  gentleman  now  lived  on  the  Mississippi, 
and  that  he  had  authority  from  this  government  to  act:  I 
should  have  no  doubt  of  the  result,  nor  of  the  confidence 
and  universal  consent  with  which  lie  would  be  supported. 
But  he  is  certainly  too  much  a  soldier  not  to  discern  that 
previous  possession  by  a  powerful  enemy  will  require 
the  labours  and  blood  of  a  disciplined  army,  and  the  delay 
and  skill  requisite  for  the  attack  of  a  fortified  country. 

We  come  now  to  consider  the  resolutions  offered  as  a 
substitute.  It  is  highly  gratifying  to  find  that  gentlemen 
are  at  last  inclined  to'  act — to  do  something  like  de- 
fending the  rights  of  our  country.  Is  there  any  new  shape 
given  to  this  business  by  the  proposed  substitute?  We 
propose  fifty  thousand  militia — They  substitute  eighty 
thousand. — To  do  what?  Will  gentlemen  tell  us  the  dif- 
ference?— It  is  said  our's  are  absolutely  imperative; — if 
so,  alter  them,  and  give  an  unqualified  discretion. — We 
will  agree  to  it.  My  own  opinion  is  that  they  should  be 
immediately  acted  upon.  If  the  majority  wish  for  a  bare 
-discretionary  power,  I  assent  to  it.  There  is  no  difference, 
except  that  one  set  of  resolutions  puts  greater  power  into 
the  hands  of  the  president  than  the  other.  Are  gentlemen 
on  the  other  side  afraid  to  trust  the  president?  Do  they 
think  he  will  abuse  this  power?  Will  it  hurt  the  negotia- 
tion? Instead  of  hurting  it,  our  minister  ought  to  carry 
this  act  to  Europe  with  him.  He  is  not  yet  gone,  and  it 
may  be  sent  with  him — he  would  then  have  more  means 
and  more  forcible  arguments  to  urge  in  his  negotiation. 

This  whole  subject  was  known  at  the  meeting  of  con- 
gress; yet  no  step  taken  till  our  resolutions  were  pro- 
posed. Now  gentlemen  are  willing  to  do  something! — 
They  seem  willing  to  give  means  to  a  certain  extent. 
Why  not  amend  our  resolutions,  when  their  own  are  but 


free  Navigation  of  the  Mississippi.  425 

a  qualification  of  our's?  We  have  but  seven  days  to  the 
end  of  this  session.  Why  dispute  about  a  substitute, 
when  amendments  may  be  made  to  meet  gentlemen's 
wishes?  They  agree  to  go  a  certain  length;  then  say  so, 
and  strike  out  the  rest.  Certainly  we  will  go  with  you  as 
far  as  you  propose,  for  we  have  offered  to  go  farther. 

But  gentlemen  say  they  have  full  confidence  in  the  ne- 
gotiation. Be  it  so — I  cannot  doubt  the  assertion  of  the 
gentleman,  although  I  draw  a  different  conclusion  from 
the  same  facts.  But  let  me  present  this  question  in  a  new 
shape,  not  yet  offered  in  this  house.  We  are  not  delibe- 
rating about  the  right  of  deposit  in  New  Orleans  merely, 
nor  about  the  island  of  New  Orleans;  we  are  told  that  we 
are  to  look  for  new  and  powerful  neighbours  in  Louisiana. 
What  right  has  Spain  to  give  us  these  neighbours  with- 
out consulting  us?  To  change  our  present  security  into 
hazard  and  uncertainty?  I  do  not  believe  that  Spain  has 
any  right  to  do  so.  What  are  the  limits  of  Louisiana?  It 
extends  three  thousand  miles  upon  your  frontier.  New 
Orleans  is  ceded  with  it.  Then  the  province  of  Louisiana 
and  New  Orleans  lie  between  the  Floridas,  and  the  other 
Spanish  dominions  on  this  continent.  It  is  not  difficult  to 
pronounce  who  will  command  and  own  the  Floridas. 
They  must  belong  to  the  master  of  Louisiana  and  New 
Orleans.  Then  the  owners  possess  the  lock  and  key  of 
the  whole  western  country.  There  is  no  entrance  or  egress 
but  by  their  leave.  They  have  not  only  three  thousand 
miles  on  your  frontier  in  the  interior  country,  but  they 
have  the  command  of  your  outlet  to  the  ocean,  and  seven 
hundred  miles  of  sea-coast  embracing  the  finest  harbours 
in  North  America.  This  makes  them,  in  fact,  masters  of 
the  western  world.  What  will  you  give  them  for  this  en- 
viable dominion?  Not  territory,  for  you  have  none  to  spare, 
and  they  want  none.  Not  commercial  privileges — they 
will  not  want  them,  for  they  will  then  have  enough  and  to 

Vol.  II.  3  H 


426  Mr.  Ross's  Speech  on  the 

spare.  What  equivalent  have  you?  What  can  you  offer 
to  men  who  know  the  value  of  such  a  country?  What, 
would  this  senate  take  for  the  surrender  of  such  an  estab- 
lishment were  it  our's?  Let  every  senator  ask  himself  the 
question  and  declare  by  what  rule  of  estimation  his  answer 
would  be  dictated. 

But  I  know  it  has  been  said,  and  will  be  said  again,  that 
the  new  French  owners  will  confirm  or  permit  our  right 
of  deposit  and  free  navigation  of  the  Mississippi. — They 
will  open  a  free  port  and  give  us  all  we  desire. 

Yes,  sir,  this  would  be  the  unkindest  cut  of  all.  I  fear 
much  less  the  enmity  of  the  present  possessors,  than  such 
neighbours.  We  shall  hold  by  their  courtesy,  not  by' the 
protection  of  our  own  government.  They  will  permit,  but 
you  cannot  inforce.  1  hey  will  give  us  all  the  advantages 
we  now  have,  and  more:  But  will  it  be  for  nothing?  Will 
they  ask  no  return?  Have  they  no  ulterior  views?  No — 
During  this  insidious  interval  they  will  be  driving  rivet 
after  rivet  into  the  iron  yoke  which  is  to  gall  us  and  our 
children.  We  must  go  to  market  through  a  line  of  batte- 
ries manned  by  veterans;  and  return  home  with  our  money 
through  a  fortified  camp.  This  privilege  will  be  held  at 
their  will,  and  may  be  withheld  whenever  their  intendant 
forbids  its  further  continuance. 

No  doubt  my  earnestness  may  have  betrayed  me  into 
expressions  which  were  not  intended.  Every  honourable 
gentleman  will  therefore  consider  me  as  addressing  his 
reason  and  judgment  merely,  without  meaning  to  give 
cause  of  offence.  But  I  cannot  conclude  without  address- 
ing myself  particularly  to  those  senators  who  represent 
the  western  states.  I  entreat  them  to  remember  that  these 
resolutions  are  intended  to  vest  a  power  which  may  or 
may  not  be  used  as  events  arise.  If  events  should  show 
in  the  recess  that  negotiation  must  fail,  what  is  the  presi- 
dent to  do?   He  must  call  congress.  This  will  consume 


free  Navigation  of  the  Mississippi.  427 

time,  and  the  enemy  gains  immense  advantages.  Why 
not  put  a  force  at  his  disposal  with  which  he  can  st1  ike? 
With  which  he  can  have  a  pledge  for  your  future  well- 
being?  When  the  Atlantic  coast  is  willing,  shall  this  secu- 
rity be  lost  by  your  votes?  Are  you  sure  that  you  will  ever 
again  find  the  same  disposition?  Can  you  recal  the  deci- 
sive moment  that  may  happen  in  a  month  after  our  ad- 
journment? Certainly  the  country  may  be  in  such  a  state 
that  at  the  next  session  you  will  have  no  such  offer  as  at 
the  present  moment.  There  may  be  a  pressure  which 
would  forbid  it.  Heretofore  you  have  distrusted  the  At- 
lantic states;  now  when  they  offer  to  pledge  themselves, 
meet  them  and  close  with  the  proposal.  If  the  resolutions 
are  too  strong,  new  model  them.  If  the  means  are  not 
adequate,  propose  other  and  more  effectual  measures.  But 
as  you  value  the  best  interests  of  the  western  country,  and 
the  union  with  the  Atlantic  coast,  seize  the  present  occa- 
sion of  securing  it  for  ever.  For  the  present  is  only  a  ques- 
tion of  how  much  power  the  executive  shall  have  for  the 
attainment  of  this  great  end,  and  no  man  desirous  of  the 
end  ought  to  refuse  the  necessary  means  for  attaining  it. 
Your  voice  decides  the  direction  this  senate  will  take,  and 
I  devoutly  wish  it  may  be  one  we  shall  never  repent. 


428 


MR.  HANSON'S  SPEECH, 

ON  THE  LOAN  RILL,  DELIVERED  IN  THE  HOUSE  OF  REPRESENTA- 
TIVES, (IN  COMMITTEE  OF  THE  WHOLE),  FEB   14,  1814. 

THE  executive  government  having  required  of  con- 
gress, authority  to  borrow  twenty-five  millions  of  dollars 
to  enable  them  to  prosecute  the  war  during  the  year 
lb  14,  the  measure  was  strenuously  supported  by  the 
friends  of  administration,  and  vehemently  opposed  by 
most  of  the  members  of  the  federal  party.  The  principal 
reasons  of  their  opposition  in  this  instance,  are  urged  in 
the  following  speech  with  all  the  animation,  vigour,  and 
boldness,  which  usually  distinguish  the  eloquence  of 
Mr.  Hanson. 

Mr.  Chairman, 

When  I  look  before  me  and  survey  the  vast  and 
boundless  prospect  which  the  subject  presents,  my  mind 
is  almost  overpowered.  I  scarcely  know  where  to  begin, 
how  to  proceed,  when  to  conclude.  Not  that  many  topics 
of  interest  and  magnitude  do  not  remain  untouched, 
through  the  considerate  politeness  of  those  who  have 
preceded  me — not  that  there  is  any  dearth  of  reasons 
why  the  capacity  should  be  withheld  from  those  who 
evince  a  fixed  determination  to  pursue  a  mad  and  ruin- 
ous career — nor  that  there  are  not  still  higher  obligations 
than  those  imposed  by  a  love  of  country,  which  com- 
mand the  patriot  to  break  and  diminish  as  he  can  the 
force  of  a  blow  aimed  at  her  best  interests,  but  it  is  set- 
ting oneself  adrift  upon  the  wide  ocean,  it  is  like  hunt- 
ing for  arguments  to  prove  an  axiom,  to  assign  reasons 
why  this  loan  should  not  be  granted — this  war  should 


Mr.  Hanson's  Speech,  &c.  429 

be  no  longer  persisted  in.  Could  one  plausible  reason  be 
assigned  for  its  continuance,  sufficient  arguments  might 
then  be  called  for  to  demonstrate  the  propriety  and  ne- 
cessity of  its  termination.  Could  encouragement  be  de- 
rived from  the  past,  keeping  alive  hope  for  the  future, 
to  stimulate  us  on  the  one  hand;  on  the  other,  more  than 
a  countervailing  depression  and  despondency  would  be 
produced,  by  a  calm  contemplation  of  the  wonderful  re- 
volution in  the  affairs  of  the  world  since  the  fatal,  ever  to 
be  lamented  hour  when  administration  first  had  recourse 
to  its  "  attitude  and  armour."  Every  consideration  which 
can  be  suggested  by  minds  devoted  to  the  good  of  the 
country,  is  arrayed  against  this  bill.  We  have  still  much 
to  lose,  every  thing  to  fear,  nothing  to  hope,  and  as  little 
to  gain. 

For  a  long  series  of  time  this  administration  has  been 
pursuing  a  phantom — grasping  at  the  shade  of  a  shadow. 
At  this  hour  they  are  no  nearer  their  unattainable  object 
than  when  they  first  started.  Like  the  infatuated  alchy- 
mibt,  they  have  persisted  in  their  experiments  until  the 
very  means  of  continuing  them  arc  well  nigh  exhausted, 
and  without  the  most  distant  prospect  of  realizing  their 
visionary  expectations.  It  may  truly  be  said,  the  sword 
was  drawn  against  ourselves.  Failing  in  the  hopeless  at- 
tempt to  subdue  Great  Britain,  we  were  disgraced,  hum- 
bled, deprived  of  many  valuable  lives,  the  nation  was 
loaded  with  an  immense  debt,  the  public  safety  jeopar- 
dized, or  made  to  rest  upon  the  humiliating  and  preca- 
rious reliance  of  an  enemy's  forbearance — successful,  the 
sword  was  sheathed  in  the  bosom  of  our  own  country. 
England  conquered,  where  should  we  have  concealed 
ourselves  from  the  searching  eye  of  the  fell  destroyer — 
where  found  shelter  from  the  tyrant's  fury.  Victorious, 
we  were  conquered,  defeated,  ruined.  Such  is  the  nature 


430  Mr.  Hanson's  Speech  on 

of  the  contest  we  arc  engaged  in;  a  war  without  hope, 
carried  on  for  objects  unattainable. 

Is  any  motive  to  be  found  for  its  continuance  in  its 
conduct,  the  events  which  have  attended  it,  or  what  all 
must  now  join  in  believing  will  be  its  issue?  With  the 
same  we.ik  councils;  with  the  same  incompetent  men  to 
direct  our  armies;  with  a  divided,  disheartened  people — 
contending  against  a  formidable  nation,  united  to  a  man 
against  us  by  what  they  conceive  to  be  the  justice  of 
their  cause — flushed  by  the  success  which  has  every 
where  attended  their  arms,  left  without  a  rival  on  the 
globe,  what  must  be  the  consequence  of  adherence  to 
feeble  and  desperate  counsels?  Released  from  her  strug- 
gle on  the  continent,  let  England  pour  her  veterans  into 
Canada,  can  we  conquer  that  province?  Let  her  resist- 
less marine,  no  longer  restrained  by  motives  of  huma- 
nity, lay  waste  our  seaboard;  where  are  our  means  of 
defence?  Already  has  army  after  army  been  driven  out 
of  Canada,  captured,  or  slaughtered.  Loan  after  loan  has 
been  negotiated  and  wasted,  and  without  our  rulers  con- 
descending to  tell  the  people  the  causes  of  these  dis- 
graceful failures,  but  when  called  on  by  a  solemn  vote 
of  this  house  to  make  known  the  causes,  referring  us  to 
a  mass  of  unmeaning  documents,  from  which  nothing  is 
to  be  extracted  but  evidence  of  the  incapacity  and  igno- 
rance of  all  who  have  helped  to  swell  the  volume  of  trash 
— declaring  it  would  be  unsafe  to  trust  the  people's  re- 
presentatives with  a  knowledge  of  the  actual  state  of  our 
army — refusing  to  tell  or  unable  to  say  what  has  been 
the  cost  of  the  war,  or  how  the  supplies  already  granted 
have  been  applied — keeping  the  people  in  the  most  ago- 
nizing suspense  and  painful  ignorance  of  the  state  of  the 
nation,  and  yet  we  are  called  on  to  unite  in  a  vigorous 
prosecution  of  this  war!  My  moral  sense,  sir,  revolts  at 
the  invitation.  Neither  threats,  denunciation,  nor  entreaty 


the  Loan  Bill.  431 

can  force  or  seduce  me  to  plant  a  poniard  in  the  breast 
of  my  country,  already  bleeding  and  languishing  under 
so  many  wounds. 

I  am  already  admonished,  sir,  to  prescribe  limits  to 
the  range  of  debate  I  find  myself  gliding  into.  I  proceed 
at  once  to  examine  the  budget  before  the  house.  It  is 
with  some  diffidence  I  enter  upon  an  examination  of  the 
estimates  submitted  by  the  chairman  of  the  committee 
of  ways  and  means.  That  branch  of  the  debate  I  was 
content  to  hive  confined  to  the  two  honourable  gentle- 
men, (Mr.  Pitkin  and  Mr.  Sheffey,)  who  preceded  me. 
I  must  hovvt  *  er  endeavour  to  supply  some  striking 
omissions  in  their  luminous  exposition  of  the  public 
finances  and  resources.  The  great  defect  which  runs 
through  the  exposition  of  the  honourable  chairman  of 
the  committee  of  finance  is  so  important  that  I  must 
claim  the  indulgence  of  the  house,  while  I  attempt  to 
explain  it.  Though  the  house  has  been  amused  by  fan- 
ciful, fallacious  and  exaggerated  estimates  to  show  the 
capacity  of  the  people  to  lend,  he  has  failed  to  elucidate 
the  ability  of  the  government  to  borrow.  That  ability 
depends  upon  the  disposition  of  the  people  to  invest 
money  in  the  public  stock.  To  produce  that  disposition, 
their  interest  must  be  consulted.  It  must  be  made  their 
interest  to  lend,  by  furnishing  sufficient  government  se- 
curities, providing  indemnity  against  loss.  If  a  permanent 
efficient  fund  is  created,  co-extensive  and  coeval  with  the 
public  debt,  and  that  fund  pledged  for  the  payment  of 
the  interest,  the  capitalist  may  then  see  his  interest  in 
becoming  a  public  creditor.  You  then  create  the  ability 
to  borrow,  by  producing  a  corresponding  disposition  to 
lend,  which  in  finance  are  convertible.  But  if,  from  a 
fear  of  losing  popularity  by  resorting  to  an  odious  system 
of  taxation,  you  fail  to  provide  a  permanent  revenue 
adequate  to  the  punctual  payment  of  the  interest,  and 


432  Mr.  Hanson'* s  Speech  on 

looking  to  the  gradual  extinction  of  the  principal  of  the 
debt  to  be  created,  the  public  credit  must  suffer,  and 
the  monied  men  will  find  it  to  be  thtir  interest  not  to 
aid  the  loan.  I  have  too  much  respect  for  the  under- 
standing of  the  house  to  enlarge  upon  this  topic. 

After  a  fair  and  deliberate  examination,  I  pronounce 
the  system  of  ways  and  means  submitted  to  the  house, 
deceptive  and  disingenuous.  These  are  strong  and  harsh 
terms,  but  I  speak  in  the  language  of  the  distinguished 
gentleman,  who  now  presides  in  this  house  with  so  much 
ability,  dignity  and  impartiality.  I  speak  the  language  of 
the  late  committee  of  finance,  and  of  this  house,  who 
adopted  the  memorable  report  of  that  committee,  which 
denounced  and  reprobated  in  the  strongest  terms  the 
very  system  now  recommended.  I  speak  the  language 
of  every  financier  and  political  economist  whose  opinions 
are  respected  in  free  and  well  regulated  governments, 
when  I  say  it  is  ruinous  and  destructive  of  public  credit 
to  enter  upon  a  system  of  loans  without  providing  the 
ways  and  means  commensurate  with  the  demands  of  go- 
vernment— without  creating  and  pledging  a  fund  secur- 
ing to  the  public  creditors  the  punctual  payment  of  the 
interest  and  ultimate  reimbursement  of  the  principal 
of  the  public  debt.  It  is  a  maxim  in  finance,  a  funda- 
mental principle  of  public  credit,  never  to  borrow  with- 
out providing  the  mean;-  of  paying  the  interest,  and  finally 
extinguishing  the  principal.  To  act  upon  a  different  sys- 
tem, to  rely  upon  loans  to  pay  the  interest  of  loans,  is  to 
adopt  a  most  desperate  system  of  fiscal  gambling,  sap- 
ping the  foundation  of  public  credit,  and  conducting  to 
national  bankruptcy.  Well  versed  in  finance,  the  prede- 
cessor of  the  present  chairman  of  that  committee,  could 
not  be  induced  to  sanction,  much  less  recommend  a  sys- 
tem of  ways  and  means  founded  in  a  studied  conceal- 
ment of  the  public  finances,  and  not  built  upon  the  sub- 


the  Loan  Bill  433 

slantial  resources  of  the  country.  Disdaining  to  act  upon 
a  system  of  temporary  expedients,  to  preserve  the  peo- 
ple's favour  at  the  cost  of  the  country's  interest,  he 
frankly  communicated  to  the  house  the  real  state  of  the 
finances.  He  acknowledged  the  wants  of  the  government. 
He  introduced  a  system  of  revenue  to  meet  the  public 
exigencies,  and  preserve  the  public  credit.  Gentlemen 
cannot  have  so  soon  forgotten  the  letter  addressed  by  the 
honourable  Langdon  Cheves  to  Mr.  Gallatin.  The  reply 
of  that  minister  must  also  be  fresh  in  their  recollection. 
So  direct  and  explicit  was  Mr.  Gallatin's  answer  in  re- 
gard to  taxes,  that  many  at  the  time  supposed,  /  was 
fully  persuaded  his  object  was  to  deter  the  congress  from 
declaring  war,  by  holding  up  to  their  view  a  frightful 
picture  of  internal  taxation — the  inevitable  consequence 
of  war.  I  must  beg  gentlemen  to  bear  with  me  while  I 
read  an  extract  or  two  from  the  report  of  the  committee 
of  ways  and  means  to  which  I  allude. 

The  president,  in  his  message  of  1811,  had  suggested 
to  congress  the  propriety  of  providing  a  revenue  "  suffi- 
cient, at  least,  to  defray  tlie  ordinary  expenses  of  govern- 
ment, and  to  pay  the  interest  of  the  public  debt,  includ- 
ing that  on  new  loans,  which  may  be  authorized."  The 
committee  in  their  report,  thus  respond  to  the  president's 
suggestion: — "  Any  provision  falling  short  of  this  requi- 
sition, would,  in  the  opinion  of  committee,  betray  an  im- 
providence in  the  government,  tending  to  impair  its  gene- 
ral character,  to  sap  the  foundations  of  its  credit,  and  to 
enfeeble  its  energies  in  the  prosecution  of  the  contest 
into  which  it  may  soon  be  drawn  in  defence  of  its  un- 
questionable rights,  and  for  the  repulsion  of  long  con- 
tinued and  most  aggravated  aggressions.  Should  the 
ruinous  system  of  relying  altogether  upon  the  aid  of  loans 
for  defraying  not  only  the  extraordinary  expenditures  of 
the  present  and  succeeding  vears,  but  also  a  large  por= 

Vol.  II.  3  I 


434  Mr.  Hanson's  Speech  on 

tion  both  of  the  ordinary  expenses  of  government,  and 
the  interest  on  the  public  debt,  including  that  on  new 
loans,  be  suffered  to  prevail,  and  no  additional  revenues 
be  reasonably  provided,   it  will  result — that  the  loans 
which  it  may  be  necessary  to  authorize  during  the  year 
1813,  must  amount  to  at  least  17,560,000  dollars,  and 
for  1814,  to  18,220,000  dollars  (this  estimate  was  deem- 
ed liberal  at  the  time,  but  it  is  12,000,000  short  of  the 
actual  demand)  an  operation,  which,  by  throwing  into 
the  market  so  large  an  amount  of  stock,  accompanied 
with  no  adequate  provision  for  paying  even  the  interest 
accruing  on  such  as  may  be  created;  but  relying  alto- 
gether upon  the  decreasing  ability  to  borrow  for  the  pur- 
pose of  paying  such  interest,  must  have  a  most  unfa- 
vourable effect  upon  the  general  price  of  public  stocks, 
and  the  consequent  terms  of  the  loans  themselves:  it  may 
be  added,  that  a  system  of  that  sort,  would,  it  is  believ- 
ed, be  found  to  be  altogether  unprecedented  in  the  financial 
history  of  any  wise  and  regular  government,  and  must  if 
yielded  to,  produce  at   no  distant  period,  that  general 
state  of  public  discredit,  which   attended   the   national 
finances  during  the  war  of  the  revolution,  and  which  no- 
thing but  the  peculiar  circumstances  of  the  country,  and 
the  want  of  a  well  organized  and  efficient  government  y 
during  the  period  of  that  revolution,  could  at  all  justify." 
Thus,  we  find,  sir,  in  language  just  as  it  is  strong,  the 
system  of  expedients,  now  recommended,  reprobated  as 
ruinous,  destructive  of  public  credit,  and  evincive  of  the 
inefficiency  and  imbecility  of  government.  But  strong  as 
are  the  terms  in  which  the  committee  denounced  the 
very  system  which  is  now  to  be  adopted,  rather  than  in- 
cur popular  odium,  by  providing,  in  the  only  regular 
and  practicable  mode,  the  requisite  ways  and  means,  to 
leave  no  doubt  of  the  fatal  tendency  of  such  a  system,  in 
their  judgment,   they  proceed  to  condemn  it   in   still, 


the  Loan  Bill  435 

harsher  language: — "  To  have  withheld  from  the  public 
view,  a  fair  exposition  of  the  probable  state  of  the  fiscal 
concerns  of  the  government,  under  the  very  first  pres- 
sure of  active  war,  or  to  have  deferred  submitting  to  the 
house  such  a  system  as  in  the  opinion  of  the  committee 
was  indispensable  to  place  the  revenues  of  the  country 
upon  a  basis  commensurate  with  the  public  exigencies, 
would,  in  their  judgment,  have  at  once  evinced  in  the 
eyes  of  foreign  nations,  an  imbecility  of  action  and  design, 
the  effects  of  which  must  be  too  obvious  to  be  mistaken, 
and  as  it  regards  our  own  country,  would  have  indicated 
a  policy  as  feeble  and  as  short-sighted,  as  it  must  have 
been  considered  deceptive  and  disingenuous,  as 
unworthy  the  rulers  of  a  free  and  enlightened  nation,  as 
in  its  result  it  would  have  been  found  fatal  to  its  inter- 
ests, and  paralyzing  to  all  its  efforts." 

It  is  impossible  to  add  to  the  force  of  the  report  which 
I  have  in  part  read.  I  shall  only  impair  its  strength  and 
weaken  its  application,  by  dilating  upon  the  sound 
maxims  and  correct  opinions  it  contains.  The  com- 
mittee expressed  its  full  concurrence  in  the  opinion  of 
the  secretary  of  the  treasury,  given  in  answer  to  a  call 
upon  him  for  an  explicit  avowal  of  his  opinion.  Mr. 
Gallatin's  answer  contains  this  paragraph: — "  that  what 
appears  to  be  of  vital  importance,  is,  that  the  crisis  should 
at  once  be  met  by  the  adoption  of  efficient  measures, 
which  will  with  certainty  provide  means  commensurate 
with  the  expense,  and  by  preserving  unimpaired  instead 
of  abusing  that  public  credit  on  which  the  public  resources 
so  eminently  depend,  will  enable  the  United  States  to 
persevere  in  the  contest,  until  an  honourable  peace  shall 
have  been  obtained." 

This  report,  leaving  nothing  to  be  added  in  condem- 
nation of  the  very  system  so  much  deprecated  at  the 
commencement  of  the  war,  and  now  proposed  to  be  act- 


43b  Mr.  Hanson's  Speech  on 

cd  on,  was  adopted  by  this  house.  When,  therefore,  I 
pronounce  the  exposition  and  estimates  of  the  honourable 
chairman  of  the  committee  of  ways  and  means,  to  be 
deceptive,  fallacious  and  disingenuous,  I  used  the  lan- 
guage of  a  committee  of  this  house;  a  language  not  re- 
proved by  the  house  itself,  when  it  received  the  report 
of  that  committee;  language  that  will  be  continued  to  be 
applied  to  the  ruinous,  deceptive  and  disingenuous  sys- 
tem under  consideration. 

But,  sir,  I  need  not  rely  upon  the  message  of  the 
president,  the  letter  of  the  secretary  of  the  treasury, 
the  report  of  the  committee  of  ways  and  means,  and  the 
opinion  the  court  party  here  expressed  by  the  reception 
of  that  report,  in  applying  suitable  epithets  to  the  exche- 
quer budget.  Out  of  his  own  mouth  will  I  condemn  the 
honourable  chairman.  At  the  last  summer  session,  the 
gentleman,  as  chairman  of  the  committee  he  still  pre- 
sides over,  introduced  a  report  which  the  house  will  in- 
dulge me  with  reading  in  part:  "  They  (the  committee) 
deem  it  unnecessary  to  say  any  thing  as  to  the  necessity 
of  providing  additional  revenue  at  a  time  when  the  gene- 
ral rate  of  expenditure  has  been  so  much  increased,  by 
measures  necessarily  connected  with  a  state  of  war," — 
"  a  provision  for  an  additional  revenue  can  no  longer  be 
delayed,  without  a  violation  of  all  those  principles  held 
sacred  in  every  country,  where  the  value  and  importance 
of  national  credit  have  been  justly  estimated."  And  yet, 
sir,  the  honourable  chairman  who  addressed  this  house 
and  the  nation  in  the  manner  mentioned,  after  a  few  short 
months,  has  overlooked  and  disregarded  all  those  sacred 
principles,  the  violation  of  which  he  so  much  deplored. 

A  little  attention  will  show  the  great  deficit  in  the  re- 
venue to  meet  the  interest  of  the  public  debt,  the  interest 
upon  the  new  loan,  and  the  expenditure  for  the  peace 
establishment  By  the  treasury  report  it  appears,  that  a 


the  Loan  Bill.  437 

revenue  of  12,050,000  dollars  will  be  necessary  to  de- 
fray the  expenses  of  the  peace  establishment,  and  satisfy 
the  interest  of  the  public  debt.  To  meet  this  sum  of 
twelve  millions  and  upwards,  the  acting  secretary  of  the 
the  treasury,  in  the  annual  report  of  that  department  on 
our  table,  estimates  the  receipts  into  the  treasury:— 

For  customs  and  sales  of  public  lands,  at  g  6,600,000 

Internal  revenues  and  direct  tax  3,500,000 

Balance  in  the  treasury  1,180,000 

Total,     11,280,000 
Making  an  acknowledged  deficit  of  770,000 

For  this  deficiency  no  provision  is  made  or  proposed, 
To  this  deficit,  admitted  by  the  head  of  the  treasury 
department  to  exist  in  the  sum  mentioned,  ought  to 
be  added  1,180,000 


it  being  the  balance  in  the  treasury  at  the  commence- 
ment of  the  present  year,  which  will  swell  the  defi- 
cit to  g  1,950,000 

The  balance  in  the  treasury  at  the  commencement  of 
the  current  year  can  fairly  be  said  to  form  no  part  of  the 
revenue  to  pay  the  expenses  of  the  peace  establishment, 
and  the  interest  of  the  public  debt.  It  cannot  be  consi- 
dered a  part  of  the  income  of  the  year  1814,  because  it 
has  heretofore  been  appropriated,  and  must  be  wanted  to 
satisfy  unsettled  claims  that  have  accrued  the  last  year. 
So  that  a  real  deficit  of  nearly  two  millions  exists,  which 
no  funds  are  provided  by  law  to  make  good.  But  a  fair 
deduction  being  made  from  the  sum  charged  for  the 
sales  of  public  lands,  and  the  revenue  from  the  customs 
and  sales  of  public  lands  will  considerably  increase  the 
deficit  stated. 

The  sum  so  arising  is  stated  at  3)  £6,600,000 

Being  reduced  one  third,  and  added  to  2,200,000 

the  deficit  already  made  out  1,950,000 


it  will  make  a  total  deficit,  admitting 
the  land  tax  to  be  renewed,  of  $  4,150,000 


438  Mr.  Hanson's  Speech  on 

To  reduce,  one  third,  the  estimate  of  revenue  to 
arise  from  commerce  and  sales  of  public  lands,  is  proper 
and  necessary,  if  our  object  is  not  to  deceive  the  people 
and  ourselves,  but  to  arrive  at  truth.  These  sources  of 
revenue  can  hardly  be  said  to  exist.  During  the  war, 
which  has  caused  the  devastation  and  depopulation  of 
the  frontiers,  it  is  not  evident  much  can  be  expected 
to  be  derived  from  the  sales  of  lands.*  During  an  em- 
bargo, re-enforced  by  an  extensive  and  rigorous  blockade 
of  the  enemy,  and  of  itself;  so  rigid  that  it  is  a  subject  of 
exultation  among  its  authors,  that  vessels  of  every  descrip- 
tion are  chained  to  our  wharves*  and  the  ports  are  herme- 
tically sealed — during  a  rigid  enforcement  of  a  non- impor- 
tation law,  to  be  supported  by  another  non  importation 
law,  what  revenue  can  be  derived  from  commerce? 

The  necessity  then  exists  to  provide  additional  revenue 
to  preserve  the  public  credit,  and  to  regard  those  maxims 
and  principles  set  forth  in  such  strong  language,  and  so 
highly  commended  by  the  house  on  a  former  occasion. 

Sir,  it  is  an  anomaly  in  political  economy,  it  is  a  de- 
parture from  the  fundamental  principles  of  public  credit, 
to  create  a  debt  without  providing  the  ways  and  means 
adequate  to  the  payment  of  the  interest.  So  say  Gallatin 
himself,  in  his  book  upon  finance,  and  the  ever  to  be  la- 
mented Hamilton,  in  his  works.  This  deceased  statesman 
may  be  truly  called  the  founder  of  the  public  credit  of 
this  nation.  Called  to  the  treasury,  he  found  the  finances 
of  the  country  in  the  deplorable  situation  they  are  des- 
cribed to  have  been  at  the  close  of  the  revolution.  But 
before  the  magic  force  of  his  genius,  our  fiscal  embarrass- 
ments disappeared.  At  extracted  order  from  chaos,  light 

*  The  failure  of  the  sale  of  lands  as  a  source  of  revenue  is  mani- 
fested by  the  applications  entertained  by  the  house,  on  the  part  of 
frontier  settlers,  for  a  considerable  extension  of  credit  in  their  pay- 
ments for  purchases  already  made. 


the  Loan  Bill.  439 

from  darkness.  He  made  confidence  to  take  place  of  dis- 
trust and  general  discontent.  In  the  celebrated  report  of 
this  great  man,  whose  services  to  his  country  are  second 
only  to  those  of  our  great  political  father,  we  find  the  foun- 
dation of  the  argument  I  am  feebly  endeavouring  to  sus- 
tain. "  The  secretary  ardently  wishes  (says  Mr.  Hamilton) 
to  see  it  incorporated  as  a  fundamental  maxim  in  the  sys- 
tem of  public  credit,  that  the  creation  of  debt  should  always 
be  accompanied  -with  the  means  of  extinguishment.  This 

HE    REGARDS    AS   THE    TRUE    SECRET    OF    RENDERING 

public  credit  immortal."  The  comment  upon  this 
text  is  afforded  by  the  financial  system  of  Great  Britain. 
Her  chancellor  of  exchequer  would  as  soon  think  of 
spunging  the  public  debt,  as  to  go  into  the  market  with 
his  loan,  without  providing  the  ways  and  means  commen- 
surate with  the  demands  of  the  government.  He  would  be 
hissed  off  the  exchange. 

The  public  credit  should  be  guarded  with  the  vigilance 
and  care  due  to  female  chastity.  The  federal  administra- 
tions scrupulously  regarded  this  great  principle  of  finance. 
In  1798,  when  it  was  necessary,  to  meet  the  public  exi- 
gencies, to  borrow  two  millions  of  dollars  in  anticipation 
of  the  direct  tax,  the  fund  arising  from  it  was  solemnly 
pledged  for  the  payment  of  the  interest  and  the  reimburse- 
ment of  the  principal.  By  pursuing  the  principles  and  ad- 
vice of  Hamilton,  and  the  practice  of  all  well  regulated 
governments,  was  the  credit  of  this  country  established. 
The  means  by  which  it  is  to  be  destroyed,  the  house  is 
now  called  on  to  sanction. 

The  present  men  in  power  have  not  only  endangered 
the  public  credit  by  a  violation  of  "  all  those  principles- 
held  sacred  by  every  country^  but  they  have  deliberately 
violated  the  public  faith.  The  fact  is  demonstrable.  The 
eight  million  sinking  fund,  pledged  for  the  payment  of 
the  old  public  debt,  has  also  been  pledged  for  the  pay- 


440  Mr.  Hanson's  Speech  on 

ment  of  the  eleven  million  loan,  the  sixteen  million  loan, 
the  seven  and  a  half  million  loan,  and  it  is  now  to  be 
again  pledged  for  the  twenty-five  million  loan.  This 
same  sinking  fund  is  also  pledged  for  the  redemption  of 
the  treasury  bills.  These  treasury  bills,  by  law,  are  made 
receivable  at  the  custom-house  for  the  imposts.  These 
bills,  possessing  no  intrinsic  value — a  mere  artificial  value 
imparted  to  them  by  the  fund  pledged  for  their  redemp- 
tion, destroy  the  value  of  that  very  fund.  The  sinking 
fund  is  rendered  valueless;  and  may  ultimately,  as  far  as 
it  is  derivable  from  commerce,  consist  merely  of  these 
bills,  which  are  a  legal  tender  for  commercial  duties. 
This  position  is  so  evident  that  it  requires  no  illustration. 

I  must  now  be  indulged  with  a  few  remarks  upon  the 
ability  of  the  government  to  borrow,  or  the  capacity  and 
disposition  of  the  people  to  lend.  It  has  been  admitted 
by  one  gentleman  that  the  loan  would  be  filled.  I  enter- 
tain no  such  opinion.  I  believe  it  will  fail.  Unless  a  most 
exorbitant  interest  is  given,  it  must  fail.  Nor  is  it  likely 
that  any  premium  will  ensure  success. 

The  eastern  states,  being  free  from  blockade,  have 
become  the  depot  of  most  of  the  foreign  articles  imported 
into  the  United  States,  for  the  supply  of  the  whole  Ame- 
rican continent.  These  articles,  owing  to  the  combined 
efforts  of  the  public  enemy  and  our  own  government, 
cannot  be  paid  for  in  the  produce  of  the  southern  and 
middle  states,  and  must  be  met  by  specie.  If  the  coasting 
trade  were  not  destroyed — if  the  trade  of  the  several 
states  with  each  other  had  to  contend  only  against  the 
public  enemy,  the  debt  thus  accrued,  in  favour  of  the 
north,  would  have  been  discharged  during  the  winter 
months,  by  the  bulky  articles  of  southern  growth,  easily 
transported  by  our  coasting  craft. 

The  president,  in  a  manner  not  to  be  disregarded,  re- 
commended to  congress  to  stop  this  traffic.  The  mandate 


the  Loan  Bill.  441 

was  obeved;  and  specie  alone  must  go  to  meet  the  de- 
mands of  the  merchants  of  New  England.  This  causes 
such  a  pressure  from  tht  east,  on  the  banks  of  the  mid- 
dle and  southern  states,  as  will  deprive  them  of  the 
means,  if  they  have  the  disposition,  to  fill  the  loan.  The 
accumulation  of  capital  in  the  state  of  Massachusetts 
alone,  enables  that  state,  by  pressing  New  York,  to  reach 
the  extreme  southern  end  of  the  chain  of  banks.  It  can- 
not be  concealed,  or  denied,  that  a  very  general  alarm  is 
felt  for  the  critical  situation  of  the  banks,  produced  by 
an  accumulation  of  capital  to  the  north  in  the  manner 
mentioned.  The  consequence  is,  that  the  whole  circulat- 
ing medium  of  the  country  is  in  danger.  Sir,  gentlemen 
seem  not  to  be  aware  of  the  difficulties  with  which  they 
are  beset.  I  do  not  wish  to  ruffle  their  serenity,  by  excit- 
ing apprehensions;  but  they  should  be  prepared  to  en- 
counter troubles  «  hich  they  have  hitherto  been  strangers 
to.  They  should  be  prepared  for  an  explosion,  the  noise 
of  which  may  not  reach  their  ears  in  time  for  their  re- 
treat. The  very  foundations  of  the  government  tremble 
beneath  it.  The  ground  on  u  hich  ministers  stand  is  hourly 
washing  from  under  their  feet.  They  have  no  excuse  for 
not  pioviding  the  ways  and  means  called  for  bj  the  pub- 
lic exigencies  but  the  fear  of  offending  the  people,  and 
ytt  the  popularity  of  the  war  is  the  favourite  theme  of 
its  authors.  A  crisis  has  arrived  in  the  finances  of  the 
government,  which,  unless  promptly  and  vigorously  met 
by  efficient  measures,  will  bring  on  certain  ruin.  The 
credit  of  the  government  once  destroyed,  cannot  be 
easily  reinstated.  It  must  be  destroyed,  if  this  system  is 
pursued. 

I  will  proceed  now,  Mr.  Chairman,  according  to  my 
original  design,  to  examine  the  points  in  dispute  between 
Great  Britain  and  our  government,  and  endeavour  to 

Vol.  II.  3K 


442  Mr.  Hanson's  Speech  on 

trace  the  events  which  have  conducted  us  directly  to  this 
war.  If  I  succeed  in  satisfying  those,  whose  minds  arc 
not  .steeled  against  conviction,  that  instead  of  honestly 
and  sincerely  endeavouring  to  adjust  our  differences  vviih 
Great  Britain,  administration  has  undeviatingly  pursued 
the  opposite  course  of  provoking  and  exasperating  En- 
gland, I  shall  at  least  stand  acquitted  for  the  opposition 
I  give  this  bill. 

By  referring  to  documents  on  your  table,  sir,  it  will 
appear  that  a  negotiation  was  opened  at  London  in  1804. 
It  continued  until  1806,  when  it  was  brought  to  a  happy- 
issue  by  the  conclusion  of  a  treaty  of  commerce  and 
amity  signed  by  Messrs.  Monroe  and  Pinkney.  It  merits 
particular  notice,  that  pending  this  negotiation,  and  when 
there  was  every  reason  to  expect  a  beneficial  result,  in 
the  same  spirit  of  insincerity  and  unfriendliness  which  lias 
since  characterized  every  correspondence  and  negotiation 
Wi.h  G.eat  Britain,  a  law  was  passed  by  congress,  through 
Mr.  Jefferson's  influence,  calculated,  and  no  doubt  in- 
tended, to  p  oduce  a  rupture  of  the  negotiation.  I  allude 
to  the  celebrated  non  importation  law  of  1805.  The 
avowed  object  of  this  act  of  the  government  was  to 
coerce  Great  Britain  to  concede  what  we  demanded — 
to  obtain  by  compulsion  what  was  only  to  be  secured 
through  friendly  discussion  and  mutual  concession.  This 
compulsory  measure  could  have  but  one  effecr,  if  indeed 
it  be  not  certain,  that  such  was  its  object — to  excite  a 
temper  and  irritation  in  the  British  ministry,  which  would 
thwart  the  efforts  of  our  ministers  to  obtain  a  satisfactory 
and  honourable  treaty.  However  it  may  have  been  in- 
tended and  ardently  desired,  that  the  measure  should  be 
considered  as  a  rod  held  over  the  British  ministry  to  in- 
timidate and  compel  compliance  with  our  demands,  yet 
so  ardent  was  their  desire  to  preserve  the  relations  of 
amity  and  commerce  with  the  United  States,  that  they 


the  Loan  Bill.  443 

accepted  and  signed  a  treaty  binding  on  their  govern- 
ment, and  left  open  for  ratification  or  rejection  by  our 
government.  This  treaty,  as  1  shall  hereafter  show,  was 
pronounced  by  our  ministers  to  be  honourable  for  our 
government,  and  highly  advantageous  to  its  interests.  It 
was  nevertheless  angrily  and  contunielionsly  rejected, 
without  even  being  submitted  to  the  consideration  of  the 
senate,  the  constitutional  advisers  of  the  executive. 

I  will  briefly  notice  the  three  points  of  difference  between 
the  two  countries,  the  adjustment  of  which  was  confided 
to  Messrs.  Monroe  and  Pmkney: 

1st.  Constructive,  or,  as  they  are  denominated  by  the 
prevailing  party,  paper  blockades. 

2d.    The  carrying  trade,  or  the  rule  of  the  war  of '56. 

3d.  Impressment  of  British  seamen  from  American 
merchant  vessels. 

I  will  not  detain  the  house  by  a  discussion  of  the  old 
question  of  blockades.  It  would  be  sufficient  for  my  pur- 
pose to  show  that  by  the  10th  article  of  the  treaty  of 
December  1806,  it  was  honourably  and  advantageously 
arranged.  But  whether  it  was  so  or  not,  the  blockades 
were  comprised  in  the  more  extensive  system  of  the  or- 
ders in  council  of  1807,  and  as  those  edicts  have  been 
repealed  since  the  declaration  of  war,  it  will  not  be  said 
we  are  now  fighting  on  account  of  the  blockades.  They 
are  now  out  of  the  question,  as  they  foim  no  part  of  the 
ground  for  continuing  the  war.  I  pass  then,  to  the  second 
point  in  dispute,  to  wit,  the  carrying  trade. 

I  take  it  for  granted,  gentlemen  know  that  the  right 
was  claimed  by  the  United  States  to  carry  on  a  trade  in 
time  of  war,  which  it  is  admitted  we  could  not  enjoy  in 
time  of  peace — a  trade  between  France,  the  mother  coun- 
try, and  her  colonies.  Great  Britain  viewed  this  intercourse 
with  a  jealous  eye,  as  indirectly  aiding  the  gre.it  enemy 
against  whom  she  was  struggling  for  existence.  She  there- 


444  Mr.  Hanson's  Speech  on 

fore  required  the  neutral  American  vessel  carrying  the 
products  of  the  colonies  to  the  mother  country  to  enter 
an  American  port,  and  unload  her  cargo,  an -'.  to  pay,  upon 
re-exportation,  i  duty  of  one  per  cent  into  our  own  trea- 
sury, and  a  duty  of  two  per  cent,  to  be  paid  upon  the 
manufac  ures  of  the  mother  country,  shipped  to  the  colo- 
nies, under  similar  regulations.  This  rule  was  inconvenient 
to  the  merchant,  but  left  the  country  in  the  lull  enjoyment 
of  the  great  advantages  of  that  lucrative  trade,  which  en- 
riched so  many  of  our  merchants,  and  poured  so  much 
wealth  into  the  country.  I  shall  not  trespass  upon  the  pa- 
th nee  of  the  hou^e  by  noticing  the  popular  uproar  raised 
by  the  '■''shackles  imposed  upon  a  lawful  commerce  ''  Jt  is 
sufficient  to  say,  an  honourable  and  advantageous  arrange- 
ment, in  the  language  of  Colonel  Monroe,  upon  this  point 
of  difference,  also  was  embraced  in  the  1  lth  article  of  the 
rejected  treaty. 

The  third,  and  what  is  now  pronounced  the  vital  point 
in  contest,  although  the  war  was  declared  on  account  of 
the  repealed  orders  in  council,  is  the  claim  to  impress 
British  subjects  from  American  merchant  vessels.  The 
secretary  of  state,  in  a  celebrated  report,  has  taken  occa- 
sion to  avow  that  a  repeal  of  the  orders  in  council  would 
not  have  prevented  the  declaration  of  war.  Is  this  true? 
then  I  am  at  a  loss  to  know  why  Mr.  Foster,  for  the  last 
few  weeks  preceding  the  declaration  of  war,  was  so 
closely  pressed  to  stipulate  their  revocation,  while  the 
grievance  of  impressment,  if  alleged  as  a  cause  of  war, 
as  it  never  was  before  the  war,  was  kept  far  in  the  back 
ground  of  the  frightful  picture,  so  often  presented  to  the 
view  of  the  people.  But  for  once,  I  am  willing  to  take  the 
assertion  of  the  secretary  upon  trust.  Although  it  was  pro- 
nounced a  federal  misrepresentation  and  falsehood  at  the 
time,  to  say  a  repeal  of  the  orders  would  not  satisfy  the 
administration  and  prevent  war,  yet  I  am  free  to  admit,  I 


the  Loan  Bill.  445 

do  believe  such  a  repeal  would  not,  under  the  then  aus- 
pices of  France,  have  dissolved  the  bonds  which  connected 
us  with  that  government.  Bonaparte  was  urgent  in  his  de- 
m  nds.  He  was  to  be  put  off  no  longer.  We  could  not 
avail  ourselves  o{'  the  llnew  chances,'''  when  the  Russian 
empire  was  overthrown,  which  the  armies  of  the  conqueror 
were  ready  to  invade,  unless  we  formally  acceded  to  the 
continental  confederacy.  However,  Mr.  Chairman,  I  find 
m\  self  imperceptibly  sliding  into  a  coarse  of  reasoning 
to  which  there  are  no  limits  this  side  the  contemplated 
termination  of  the  present  session. 

I  come  back,  sir,  to  the  question  of  impressment  and 
th  rejected  treaty.  Bui  hi  fon  I  enter  epon  the  examina- 
tion of  this  question  of  vital  importance,  a  few  words  in 
relation  to  the  treatment  and  conduct  01  Col.  Monroe 
upon  his  arrival  in  America,  after  his  treaty  was  rejects  d. 

The  question  natural!}  presents  itself,  what  could  have 
induced  Col.  Monroe,  "  one  of  the  pillars  of  .sir.  Jefferson's 
happiness"  to  sign  a  treaty  sacrificing  the  honour  of  the  na- 
tion, and  compromiting  its  best  interests?  What  could  have 
tempted  him  to  negotiate  a  treaty  so  palpably  bad  as  to 
demand  an  instant  rejection?  so  flagrantly  dishonourable  as 
not  to  merit  the  ceremony  of  being  la  d  before  the  senate? 
•so  ob\iously  disgraceful  as  to  call  forth  the  censure  and 
condemnation  of  his  employer?  Good  easy  man,  he  little 
thought,  at  that  time,  for  Mr.  Jefferson  intrusts  to  k\v  the 
secrets  of  his  bosom,  that  a  treaty  was  the  last  thing  that 
was  expected  or  desired.  He  did  not  know  that  a  treaty 
with  England  would  be  deemed  equivalent  to  a  war  with 
France,  and  that  in  no  event  was  offence  to  be  given  to 
Fiance.  He  supposed  instructions  would  not  have  been 
sent  to  England  to  negotiate,  unless  in  sincerity  and  pood 
faith  a  favourable  result  was  desired  for  that  negotiation. 
H-j  was  soon  undeceived  upon  his  arrival.  He  was  sent 
info  retirement  upon  his  farm  in  Virginia,  loaded  with  the 


446  Mr.  Hansorfs  Speech  on 

reproaches  of  the  republicans,  for  having  basely  '■'■aban- 
doned the  rights  and  honour  of  the  countnf — for  having 
done  what  was  infinitely  more  unpardonable;  for  having 
endangered  the  integrity  and  existence  of  the  democratic 
part)'.  A  treaty  with  England  would  deprive  democracy 
of  its  food,  of  its  natural  aliment,  without  which  it  would 
pine  and  die.  It  would  heal  and  hush  animosity  and  cla- 
mor against  that  country.  British  antipathies,  upon  which 
the  ruling  party  subsists,  would  be  removed.  This  was 
his  inexpiable  offence;  to  atone  for  which,  he  was  driven 
from  the  presence  of  the  court,  into  banishment,  in  the 
ancient  dominion.  He  retired  with  those  feelings  which 
wounded  honour  excites — for  he  yet  retained  his  honour. 
In  his  retirement  he  attracted  the  sympathy  and  compas- 
sion of  the  least  zealous  of  all  parties:  The  plan  was  con- 
ceived, and  upon  suggestion  gained  daily  proselytes,  to 
put  him  in  nomination  at  the  next  election,  in  opposition 
to  the  present  incumbent  of  the  palace.  The  moment  was 
critical  and  interesting.  Mr.  Jefferson,  who  has  so  long 
governed  the  country  in  secret,  and  who  only  retired  after 
he  had  gathered  a  storm  whose  frightful  aspect  overpow- 
ered his  nervous  sensibilities,  could  not  view  unconcerned 
the  dangerous  schism  which  threatened  the  democratic 
party.  The  great  magician  ascended  the  pinnacle  of  his 
favourite  mount,  and  waved  his  wand  over  Richmond.  It 
bad  an  electrical  effect.  The  parties  were  immediately 
brought  to  the  famous  conference  at  Monticello,  All  was 
instantly  arranged.  The  disgraced  minister  was  reconciled 
and  again  taken  into  favour.  His  aberrations  were  pardon- 
ed. He  returned  to  Richmond,  and  there  received  the  re- 
quisite white-washing,  in  the  modern  political  mode.  He 
was  quickly  exalted  to  the  gubernatorial  chair  of  the  great 
state,  as  a  preliminary  step  to  a  regular  induction  to  the 
office  of  state,  which  he  now  fills.  Having  sat  out  his  ap- 
pointed period  upon  the  patent  stool  of  political  repentance. 


the  Loan  Bill.  447 

he  then  passed  from  his  probationary  state  of  governor  to 
his  allotted  station  in  the  direct  line  of  Virginia  succession, 
and  is  ere  long  to  mount  the  throne.  Yes,  sir,  James  the 
second  is  ripe  and  ready  to  undergo  the  ceremonies  of 
coronal  ion,  whenever  James  the  Jirst  shall  see  fit  to  abdi- 
cate in  his  favour.  That  the  house  may  judge  how  far  the 
present  conduct  and  principles  of  the  heir  apparent  are 
reconcileab'e  with  his  former  professions,  I  beg  to  be 
indulged  while  I  read  a  few  pertinent  paragraphs  from  the 
book  which  he  found  it  necessary  to  write  in  his  vindica- 
tion, while  he  was  yet  under  the  royal  displeasure. 

"  I  have  on  the  contrary  always  believed,  and  still  do 
believe,  that  the  ground  on  which  that  interest  (impress- 
ment) was  placed  by  the  paper  of  the  British  commission- 
ers of  Nov.  8,  1806,  and  the  explanations  which  accom- 
panied it,  was  both  honourable  and  advantageous  to  the 
United  States;  that  it  contained  a  concession  in  their  fa- 
vour, on  the  part  of  Great  Britain,  on  the  great  principle 
in  contestation  never  before  made  by  a  formal  and  obliga- 
tory act  of  the  government^  which  was  highly  favourable 
to  our  interest"  &fc. 

"  We  were  therefore  decidedly  of  opinion,  that  the 
paper  of  the  British  commissioners  placed  the  interest  of 
impressment  on  ground  which  it  was  both  safe  and  honour- 
able for  the  United  States  to  admit;  that  in  short  it  gave 
this  government  the  command  of  the  subject  jor  every 
necessary  and  useful  purpose.  Attached  to  the  treaty,  it 
was  the  basis  or  condition,  on  which  the  treaty  rested. 
Strong  in  its  character  in  their  favour  on  the  great  ques- 
tion of  right,  and  admitting  a  favourable  construction  on 
others,  it  placed  us  on  moie  elevated  ground  in  those  re- 
spects than  we  held  before." 

"War,  therefore,  seemed  to  be  the  inevitable  consequence 
of  such  a  state  of  tilings,  and  I  was  far  from  considering- 
k  an  alternative,  which  ought  to  be  preferred  to  the  ar- 


448  Mr.  Hansotfs  Speech  on 

rangement  which  was  offered  to  us.  When  I  took  into  view 
the  prosperous  and  happy  condition  of  the  United  States, 
compared  with  that  of  other  nations;  that  as  a  neuual 
power  they  were  almost  the  exclusive  carriers  of  the  pro- 
ductions of  the  whole  world;  and  that  in  commerce  they 
flourished  beyond  example,  notwithstanding  the  losses 
they  occasionally  stiffen  d  I  was  strong  in  the  opinion  that 
those  blessings  ought  not  to  be  hazarded  in  such  a  question, 
Many  other  considerations  tended  to  confirm  me  in  that 
sentiment.  I  knew  that  the  United  States  were  not  pre- 
pared for  the  war;  that  their  coast  was  unioitihed,  and 
their  cities  in  a  great  measure  defenceless;  that  their  mi- 
litia, in  many  of  the  states,  was  neither  armed  nor  trained, 
and  that  their  whole  revenue  was  derived  from  commerce. 
I  could  not  presume  that  there  was  just  cause  to  doubt 
which  of  the  alternative.-,  ought  to  be  preferred  " 

These  extracts,  sir,  speak,  for  themselves,  and  need  no 
commentary.  How  far,  since  he  has  been  restored  to  fa- 
vour, the  colonel  has  disregardeci  these  opinions  and  proved 
worthy  of  his  employers,  may  lie  gathered  from  an  im- 
portant occurrence»during  the  spring  session.  I  claim  the 
undivided  attention  of  the  house,  while  I  explain  the  mat- 
ter to  which  I  allude. 

It  will  be  recollected,  that  during  the  spring  session,  the 
president  nominated  the  noted  Jonathan  Russell  minister 
plenipotentiary  to  the  court  of  Sweden.  Mr.  Russell's 
character  did  not  stand  very  fair  before  the  public,  on  ac- 
count of  an  alleged  omission,  on  his  part,  to  deny  the 
assertion  of  the  Duke  of  Ba->sano,  that  the  French  repeal- 
ing decree,  of  April,  1811,  had  been  regularl),  and  in 
due  time,  communicated  to  this  government,  or  its  accre- 
dited agent  at  the  French  court.  Before  acting  upon  the 
nomination,  the  senate  conceivcd.it  would  be  proper  to 
ascertain,  officially,  the  grounds  of  the  suspicion  against 
Mr.  Russell's  fidelity  and  truth.    A  committee  for  that 


the  Loan  Bill.  449 

purpose  was  appointed  by  the  senate,  with  instructions  to 
wait  on  the  secretary  of  state,  and  enquire  into  the  fact  of 
the  alleged  culpable  omission  to  vindicate  the  honour  and 
verafity  of  his  government  at  the  French  court.  Having 
performed  the  duties  assigned  to  them,  that  committee 
reported  in  form  to  the  senate,  that  they  had  called  on  the 
secretary  of  state,  and  made  the  enquiry  they  were  in- 
structed to  make,  and  that  the  secretary  had  given  for 
answer,  that  no  official  letter  was  in  the  department  of 
state  containing  the  contradiction  or  communication  re- 
quired; but  he  informed  them  there  was  a  private  letter 
in  his  possession,  which  he  said  contained  such  a  contra- 
diction. Here  ended  the  report  in  substance  to  the  senate; 
but  I  have  it  from  the  mouth  of  more  than  one  of  that 
committee,  it  is  no  secret,  sir,  that  the  said  private  letter 
was  read  to  them  by  Col.  Monroe,  but  it  contained  no  suck 
contradiction. 

Well,  sir,  about  this  very  time,  that  the  senate  was  en- 
gaged in  the  investigation,  the  attention  of  this  house  was 
called  to  the  same  subject  on  motion  of  my  distinguished 
friend  from  New  Hampshire,  [Mr.  Webster).  After  muck 
difficulty,  the  house  adopted  the  resolution  calling  for  the 
information.  When  behold!  an  official  letter  was  produced, 
in  due  form  suitably  dated,  and  regularly  authenticated — 
Yes,  sir,  the  very  identical  letter  which  Col.  Monroe  had 
but  a  few  days  before  solemnly  told  the  senate  was  not  in 
the  department  of  state — not  in  existence!  I  claim  per- 
mission then  to  place  the  secretary  on  the  horns  of  the 
dilemma.  Either  the  letter  was  in  existence,  and  in  the 
department  of  stat<  when  called  for  by  the  senate,  or  it 
was  not.  If  the  affirmative  assertion  be  true,  then  the  se- 
cretary was  guilty  of  a  wilful  untruth — if  the  negative, 
then  it  must  have  been  fabricated  for  the  occasion;  and 
deposited  in  the  department  of  state  afterwards,  to  answer 
the  purposes  of  the  parties  implicated.  There  is  no  evad- 

Vol.  H.  3  L 


450  Mr.  Hanson's  Speech  on 

ing  this  result — it  is  palpable — inevitable.  We  are  brought 
to  it  by  the  testimony  of  the  secretary  of  state  himself, 
than  whom  there  can  be  no  better  witness  against  himself- — 
This  one  act  of  legerdemain  diplomacy  fixed  him  in  the 
confidence  of  his  employers.  The  sin  of  negotiating  a 
treaty  with  England  was  expiated — was  more  than  coun- 
terbalanced by  a  successful  extrieation  of  the  ministry 
from  extreme  difficulty. —  He  won  the  approbation  and 
applause  of  his  party.  The  sentiments  of  Coi.  Monroe,  in 
relation  to  a  treaty  with  England,  when  left  to  think  for 
himself,  and  at  liberty  to  act  independently,  may  be  found 
in  his  letter  of  vindication.  What  his  sentiments  and  prin- 
ciples now  are,  the  world  must  judge  from  his  actions. 
That  judgment  impartially  formed  will  not  vary  much 
from  the  estimate  I  have  made  of  his  character. 

Affer  this  digression,  into  which  I  have  been  led  by 
Colonel  Monroe's  exculpatory  letter,  I  will  return  to  the 
question  of  impressment,  which  is  the  only  remaining 
cause  of  quarrel  with  Great  Britain,  and  for  which  the  war 
is  continued.  England  claims  the  right  to  impress  her 
seamen  from  our  merchant  vessels.  To  take  American 
citizens,  she  has  never  for  a  moment  set  up  the  extrava- 
gant pretension.  The  similarity  of  language  and  manners 
between  the  two  people  gives  rise  to  many  vexatious 
abuses  of  the  exercise  of  the  right  of  impressment,  and 
the  only  possible  mode  of  accommodating  the  opposite 
claims  of  the  two  governments  is  by  negotiation  and 
mutual  concession.  Struggling  as  England  has  been  for 
existence,  depending  upon  her  marine  for  defence  and 
protection,  she  could  not  permit  neutral  merchant  vessels 
to  be  converted  into  an  asylum  for  deserters  from  her  ser- 
vice, without  endangering  her  navy.  Her  seamen  are  her 
right  arm.  You  sever  it  from  her  body,  or  lash  it  tight  to 
her  side,  whenever  she  is  forced  to  permit  her  seamen  to 
be  tempted  into  neutral  service,  by  the  higher  wages  and 
better  treatment  thev  there  receive.  The  facility  with  which 


_»  the  Loan  Bill.  451 

her  subjects  are  naturalized  in  this  country,  the  barefaced 
perjury  which  provides  them  with  protections,  without 
trouble  or  expense,  reduced  England  to  the  necessity  of 
exercising,  as  an  act  of  preventive  justice,  what  she  claimed 
as  a  belligerent  right,  or  submitting  to  the  growing  and 
alarming  evil  of  losing  her  best  mariners.  As  it  could  not 
be  expected  of  her  passively  to  connive  at  such  an  abuse 
of  her  rights  and  attack  upon  her  national  safety,  nor  ex- 
pected of  this  country  to  sit  quietly  under  the  abuse  of  the 
practice  of  impressment,  the  difference  couid  only  be  set- 
tled by  treaty.  It  was  so  settled,  as  i  have  before  shown, 
by  Col.  Monroe,  and  upon  terms  precisely  such  as  it  is 
not  denied  administration  is  now  perfectly  willing  to  ac- 
cept. Nor  can  it  be  doubted  they  would  have  come  to  the 
same  terms  before,  but  from  a  fear  of  France,  and  a  habit 
of  submission  to  that  power.  A  wise  and  provident  minis- 
try would  have  been  content  with  an  arrangement  relin- 
quishing the  practice  of  impressment,  without  stipulating 
a  formal  abandonment  of  the  principle. 

I  will  say  a  few  words  upon  the  question  of  the  right 
of  a  nation  to  the  service  of  her  subjects  during  war,  and 
to  seize  them  on  a  common  jurisdiction.  There  is  no- 
thing novel  in  the  claim  of  a  belligerent  to  call  home  her 
subjects  to  assist  in  defending  their  country.  She  may 
take  them  by  force  to  aid  in  the  common  struggle  for 
self-preservation.  A  belligerent  has  a  right  to  search  neu- 
tral vessels.  It  has  never  been  denied  by  our  government, 
though  it  has  been  disputed  on  this  floor.  In  his  famous 
letter  of  instructions  to  Mr.  Monroe,  Mr.  Madison  di- 
rects him  to  stipulate,  in  the  treaty  he  was  negotiating,  a 
renunciation  of  the  claim  to  take  from  neutral  vessels 
any  person  "  not  in  the  military  service  of  an  enemy;  an 
exception  (says  he)  which  we  admit  to  come  within  the 
law  of  nations,  on  the  subject  of  contraband  of  war."  The 
right  of  search  is  then  admitted.  For  what  may  the  belli- 


452  Mr.  Hansorfs  Speech  on 

gerent  search?  For  contraband  of  war,  which  is  lawful 
prize  to  the  belligerent;  for  persons  in  the  military  ser- 
vice of  the  enemy,  whom  she  mav  make  prisoners,  upon 
the  principle  of  preventing  them  from  doing  her  future 
harm.  If,  under  the  acknowledged  right  of  search,  Great 
B*  itafn  could  search  American  vessels,  and  take  there- 
from whatever  was  legal  prize  to  the  seizing  belligerent, 
and  could  also  make  captive  enemies'*  subjects,  how  much 
Stronger  is  her  claim  to  her  own,  to  take  what  is  neither 
ei  my  nor  neutral,  but  what  always  belonged  to  her — 
her  own  subjects,  whose  services  are  required  for  the  com- 
mon defence  It  being  admitted  thaft  she  may  make  pri- 
soner of  an  enemy,  to  prevent  his  doing  the  belligerent 
future  harm,  why  may  she  not  take  her  own  subjects  for 
the  same  purpo-.e  of  strengthening  herself,  and  weakening 
the  enemy,  by  aiding  in  repelling  his  attacks?  h  stands 
to  reason — it  partakes  of  the  justice  of  the  principle  of 
search  and  seizure,  that  a  neutral  cannot  protect  by  for- 
cible adversary  possession  the  subject  of  a  belligerent, 
when  it  cannot  protect  the  property  or  military  subjects 
of  an  enemy.  This  is  the  dispute  between  us.  We  claim 
the  right  to  protect  British  subjects  out  of  the  jurisdiction 
of  our  laws,  by  giving  an  extra-territorial  operation  to 
municipal  regulations.  In  his  letter  of  instructions  to 
Mr.  Monroe,  before  referred  to,  Mr.  Madison  says,  "  if 
the  law  of  allegiance;  which  is  a  municipal  law"  &c.  and 
yet  we  claim  to  piotect  foreigners  out  of  our  jurisdiction, 
who  owe  but  a  local  temporary  allegiance  to  the  United 
States,  against  the  prior  and  permanent  claim  of  their 
native  country.  It  will  be  shown  hereafter,  that  the  arm 
of  protection  is  to  be  extended  beyond  our  territorial 
limits  as  well  for  the  protection  of  foreigners  of  that  de- 
scription, as  those  who  have  undergone  the  legal  process 
of  naturalization.  That  wc  do  claim  the  right  of  protect- 
ing British  subjects,  deserters  or  not,  is  to  be  found  in 


the  Loan  Bill.  453 

every  declaration  and  act  of  administration.  The  same 
letter  before  referred  to,  page  11,  contains  this  passage: 
— "  With  this  exception  {contraband  of  war)  we  consider 
a  neutral Jtag  on  the  high  seas,  as  a  safeguard  to 
those  sailing  under  it."  Thus,  an  asylum  is  to  be 
afforded  by  American  merchant  vessels  to  British  de- 
serters. It  is  for  a  recognition  of  this  haughty  and  extra- 
vagant pretension,  which  no  British  minister  dare  recog- 
nise, that  we  are  at  war.  A  pretension  which  they  have 
reiterated,  they  could  not  recognise,  though  they  have  as 
often  manifested  a  sincere  wish  to  come  to  an  arrange- 
ment, which  would  be  mutually  satisfactory  to  both  na- 
tions. Our  government  has  never  met  their  wishes  ex- 
pressed on  this  subject  by  a  corresponding  disposition  or 
overture.  An  abandonment  of  the  right  is  what  they 
have  never  ceased  to  demand.  And  when  instructions  to 
that  effect  have  been  uniformly  given  to  ministers,  can 
any  one  believe  a  treaty  has  been  honestly  and  sincerely 
sought  by  our  rnlers.  To  present  the  question  fairly,  by 
explaining  the  views  i;nd  feelings  of  the  British  govern- 
ment upon  the  question  of  impressment,  redious  as  may 
be  the  process,  I  must  read  a  few  extracts  from  docu- 
ments before  the  house. 

Messrs.  Monroe  and  Pinkney  held  a  conference  with 
Lords  Auckland  and  Holland,  on  the  22d  of  August, 
1806.  These  commissioners,  always  deemed  friendly  to 
this  country-,  declared  "  that  they  felt  the  strongest  re- 
pugnance to  a  formal  renunciation  of  their  claim  to  take 
from  our  vessels  on  the  high  seas,  such  seamen  as  should 
appear  to  be  their  own  subjects;  and  they  pressed  upon 
us  with  much  zeal,  a  substitute  for  such  abandonment, 
&c."  "  They  enforced  this  (say  our  ministers  in  their 
despatch)  by  observing,  that  they  supposed  our  object 
to  be  to  prevent  the  impressment  of  American  seamen, 
and  not  to  withdraw  British  seamen  from  the  service  of 
their  country,  in  times  of  great  national  peril,  in  order  to 


454  Mr.  Hanson's  Speech  on 

employ  them  ourselves;  that  their  proposal  would  effect  this 
object;  that  if*  they  should  consent  to  make  our  commer- 
cial navy  an  asylum  for  all  British  seamen,  the  effect  of 
such  a  concession  upon  her  maritime  strength,  on  which 
Great  Britain  depended,  might  be  fatal." 

Although  willing  to  accept  a  substitute,  which  would 
completely  provide  for  the  interest  and  secure  the  honour 
of  the  United  States,  it  appears  that  Great  Britain  never 
would  yield  the  principle. 

In  a  despatch  from  our  ministers,  on  the  11th  Sept. 
1806,  They  say  the  British  ministers  asserted  the  right  of 
seizing  her  own  subjects,  adding  that "  the  relinquishment 
of  it  at  this  time  would  go  far  to  overthrow  their  naval 
power,  on  which  the  safety  of  the  state  essentially  de- 
pended." 

In  1806,  the  British  commissioners  referred  the  ques- 
tion to  the  la-w  officers  of  the  crown,  who  reported  in  fa- 
vour of  the  right  of  taking  their  own  subjects,  and  the 
commissioners  themselves  then  added,  "  that  the  relin- 
quishment of  it  was  a  measure  which  the  government 
could  not  adopt  without  taking  upon  itself  a  responsibility, 
which  no  ministry  could  be  willing  to  meet,  however 
pressing  the  emergency  might  be" 

Having  thus  given  their  final  answer,  the  British  mi- 
nisters, still  anxious  to  arrange  the  dispute  upon  impress/* 
ment,  submitted  to  our  ministers  the  subjoined  counter- 
project  to  that  which  Col.  Monroe  was  directed  to  pro- 
pose. "  Whereas,  when  one  nation  is  at  war,  and  the 
other  at  peace,  it  is  not  lawful  for  the  belligerent  to  im- 
press or  carry  off  from  the  neutral  vessel  seafaring  per- 
sons who  are  the  natives  of  the  neutral  country,  or  others, 
who  are  not  the  subjects  of  the  belligerent;  and  whereas, 
from  similarity  of  language  and  appearance,  it  may  be 
difficult  to  distinguish  the  subjects  of  the  two  states,  the 
high  contracting  parties  agree  for  the  greater  security  of 


the  Loan  Bill.  455 

the  neutral  subjects,  they  will  respectively  enact  such  laws 
as  shall  subject  to  heavy  penalties,  the  commanders  of  bel- 
ligerent ships,  who  shall  carry  off  the  subjects  of  the  neu- 
tral on  any  pretence  whatever '."  What,  sir,  could  be 
more  fair?  or  more  fully  answer  the  pretended  claim  ol 
administration?  The  proposal  was,  nevertheless,  rejected. 
The  British  ministers,  siill  anxious  to  place  the  question 
upon  the  best  possible  footing  for  this  country,  addressed 
a  note  to  our  ministers,  from  which  I  beg  leave  to  read 
a  short  extract: — They  state  "  that  instructions  had  been 
given  and  should  be  repeated  and  enforced,  for  the  obser- 
vance of  the  greatest  caution  in  the  impressing  British 
seamen,  and  that  the  strictest  care  shall  be  taken  to  pre- 
serve the  citizens  of  the  United  States  from  any  molesta- 
tion or  injury,  and  that  immediate  and  prompt  redress 
shall  be  afforded  upon  any  representation  of  injury  sus- 
tained by  them." 

In  noticing  this  letter  to  our  government,  Messrs. 
Monroe  and  Pinkney  say,  "  every  thing  is  expressed  in 
it  that  could  be  desired,  except  the  relinquishment  of  the 
principle."  But  Mr.  Madison,  in  his  celebrated  letter  of 
instructions,  of  May  20,  1807,  says  to  Messrs.  Monroe 
and  Pinkney,  "  you  will  observe,  that  the  proposition  is 
so  framed,  as  not  to  comprehend  among  British  seamen 
those  who  have  been  made  citizens  of  the  United  States, 
and  who  must  necessarily  be  so  regarded  within  their  juris- 
diction, and  under  our  flag." 

We  are  at  war  then  for  a  principle  which  Great  Bri- 
tain has  declared  she  never  would  yield,  although  she 
was  willing  to  compromise — for  a  principle,  which  Mr„ 
Monroe  declares  was  "  honourably  and  advantageously 
arranged"  by  the  rejected  treaty  of  1806.  This  is  the 
object  of  the  war  now  avowed  by  its  authors.  I  may 
hereafter  show  it  was  engaged  in  for  objects  altogether 
different. 


456  Mr.  Hanson's  Speech  on 

Mr.  Chairman,  upon  this  question  of  impressment, 
allegiance,  protection  and  retaliation,  which  has  been 
connected  with  it,  gentlemen  here  may  fret,  rail,  and  ar- 
gue until  doomsday.  They  may  set  up  new  fangled 
doctrines,  unknown  to  public  law,  and  deny  old  and  esta- 
blished principles,  but  as  far  as  depends  upon  the  opinions 
of  the  ablest  jurists  and  the  practice  of  the  oldest  regular 
governments,  the  point  in  controversy  is  long  ago  settled. 
It  is  immutably  determined.  It  is  inherent  in  the  very 
nature  of  society  and  government.  If  it  were  otherwise, 
every  political  society  would  contain  the  seeds  of  its  own 
dissolution  and  destruction,  instead  of  the  great  inherent 
principle  of  perpetuity  and  power.  Sir,  we  have  no  right 
to  the  service  of  the  subjects  of  a  foreign  prince.  We 
can,  if  we  choose  and  have  the  power,  protect  them 
against  the  superior  claim  of  their  native  country;  we 
may  declare  a  war  for  such  an  object,  but  we  derive  no 
such  right  from  social  regulations  or  the  public  law  of 
nations. 

It  is  a  fundamental  maxim  of  the  common  law 
of  England,  which,  I  believe,  we  have  no  power  t© 
repeal,  or  just  pretension  to  render  nugatory  in  its  ope- 
ration, "  that  natural  allegiance  is  perpetual,  and  cannot 
be  affected  by  time,  place,  or  circumstances,  nor  can  it 
be  changed  by  swearing  allegiance  to  another  sovereign — 
the  subject  may  to  be  sure  by  such  means  entangle  him- 
self, but  he  cannot  unloosen  the  bands  which  connect 
him  with  his  native  country." — [See  Blacfcstone^s  Co?n- 
mentaries.~\ 

Availing  themselves  of  the  indulgence  of  pursuing 
their  happiness  in  whatever  climes  their  fortunes  may 
lead  them,  if  they  form  engagements  with  ano;hcr  go- 
vernment inconsistent  with  their  prior  and  permanent 
obligations  to  their  native  country,  it  is  an  act  done  in 
their  own  wrong.  They  enter  into  a  contract  from  its 


the  Loan  Bill.  ^hl 

nature,  void  ab  initio,  because  it  requires  two  parties, 
both  able,  to  make  a  valid  contract.  In  the  case  mention- 
ed, one  of  the  parties  to  the  contract  of  naturalization 
was  disabled  from  contracting.  If  the  foreigner,  owing 
original  and  permanent  allegiance  to  his  native  country, 
from  which  he  has  no  power  to  absolve  himself,  except 
by  her  consent,  express  or  implied,  engages  to  perform 
opposite  and  irreconcileable  duties,  he  alone  is  to  blame 
for  the  difficulties  in  which  he  may  find  himself  involved. 
— This  I  conceive  a  full  answer  to  every  thing  alleged 
of  the  hardship  of  naturalized  citizens  being  forced  to 
perform  conflicting  duties.  Is  it  said  naturalized  citizens 
may  be.  forced  to  bear  arms  against  their  native  country, 
and  therefore  are  entitled  to  protection  from  their  adopted 
country,  as  native  citizens  are  within,  and  without  our 
territorial  jurisdiction?  They  were  not  forced  to  abjure 
allegiance  to  their  government.  The  fault  is  their  own, 
if  they  have  "entangled  themselves"  by  an  act  done  in 
their  own  wrong. 

In  the  case  of  retaliation  presented  to  the  nation,  the 
president  goes  further  than  some  gentlemen  of  the  minis- 
terial side  seem  prepared  to  follow  him.  He  not  only 
claims  to  protect  foreigners  naturalized  by  our  laws,  but 
this  protection  is  to  be  extended  to  emigrants  who  owe 
merely  a  local  temporary  allegiance  to  this  country.  Ac- 
cording to  his  delusive,  unsound  doctrine,  those  are  to  be 
protected  who  have  "  incorporated  themselves  into  our  po- 
litical society ,"  not  according  to  our  laws,  but  according 
to  "  the  modes  recognised  by  Great  Britain.11  Now,  sir, 
I  am  prepared  to  go  a  step  further  than  has  been  deemed 
necessary  from  the  actual  case  presented  to  our  conside- 
ration. I  say,  an  Englishman,  naturalized  or  not  by  our 
laws,  if  found  in  arms  against  his  native  country,  is  a 
traitor  by  the  laws  of  his  native  country.  I  do  not  confine 
the  position  to  British  subjects  naturalized  here,  and 

Vol.  II.  3  M 


458  Mr.  Hanson' 's  Speech  on 

made  captive  within  the  dominions  of  their  sovereign, 
where  the  arm  of  protection  cannot  be  extended,  but  if 
the  armies  of  the  enemy  crossed  the  lines  and  invaded  us 
in  turn,  and  made  prisoner  a  Briton  in  arms  against  Bri- 
tain, he  is  as  much  a  traitor  as  if  taken  in  the  heart  of  the 
British  empire.  If  by  the  laws  of  England  her  subjects 
cannot  throw  off  their  allegiance,  and  are  taken  in  arms, 
no  matter  where,  they  must  answer  to  the  offended  laws 
of  their  native  country  for  the  parricidal  act.  I  can  see 
no  assignable  difference  in  the  cases,  according  to  the 
laws  of  England,  and  who  is  born  in  that  political  society, 
is  bound  by  its  primary  laws  and  regulations.  They  are 
not  to  be  annulled,  or  altered,  for  the  convenience  of  an 
individual,  or  the  few,  to  the  imminent  danger  or  de- 
duction of  the  many.  Our  naturalization  laws  can  have 
no  more  binding  effect  upon  other  nations,  than  any  other 
municipal  regulation.  By  claiming  to  give  them  an  ex- 
tended operation  to  other  countries,  we  interfere  in  their 
internal  government.  We  set  up  the  lofty  and  high 
sounding  pretension  of  legislating  for  the  whole  world — 
of  malting  our  acts  grafts  upon  the  public  law  of  nations 
- — of  incorporating  our  municipal  acts  into  the  great  code 
of  nations.  If  we  mean  and  are  able  to  contend  against  a 
Avorld  in  arms,  this  new  and  towering  pretension  may  be 
persisted  in,  as  similar  innovations  have  been  by  invinci- 
ble conquerors,  who  know  no  laws  human  or  divine,  that 
assign  bounds  to  their  ambition.  Upon  no  principle,  nei- 
ther according  to  the  previous  admissions  and  practice  of 
our  own  government,  nor  the  long  established  principles 
of  other  nations,  can  we  maintain  such  a  claim.  It  is 
hardly  necessary  to  detain  the  house  by  reciting  the  cir- 
cumstances of  Clark's  case,  who  was  taken  as  a  spy  and 
discharged  by  Mr.  Madison.  The  case  of  JVilliams>  de- 
cided by  Judge  Ellsworth,  in  Connecticut,  also  shows  by 
our  laws,  as  well  as  those  of  Great  Britain,  that  allegiance 


the  Loan  Bill.  459 

is  perpetual.  The  celebrated  case  of  M'Donald,  shows 
what  the  law  and  practice  is  in  England,  and  France, 
who  never  thought  for  a  moment  of  resorting  to  retalia- 
tion, for  the  trial  and  condemnation  of  an  adopted  citizen 
who  had  lived  in  France  from  his  infancy,  held  a  com- 
mission in  her  service,  and  was  taken  in  arms  against 
England,  and  tried  as  a  traitor.  Such  men  are  traitors, 
in  the  legal  true  sense  of  the  word,  and  ought  to  be  treat- 
ed as  such.  The  good  of  society  and  the  safety  of  go- 
vernments requires  it.  If,  to  protect  them,  we  resort  to  a 
bloody,  ferocious,  exterminating  system  of  retaliation, 
We  shed  the  innocent  blood  of  our  own  countrymen.  We 
cause  the  blow  to  be  struck,  though  we  do  not  imme- 
diately aim  or  direct  it.  I  say  then,  without  reserve,  if 
the  president  proceed  in  the  ruthless  bloody  business  he 
has  commenced,  he  is  answerable,  here  and  hereafter,  for 
all  the  American  lives  wantonly  sacrificed.  Posterity  will 
pronounce  him  guilty,  and  heap  maledictions  upon  his 
name.  The  unnatural  deed  will  blacken  the  page  of  our 
history. — When  the  party  contests  of  the  day  are  forgot- 
ten; when  the  passions  engendered  by  political  strife 
have  subsided;  when  reason  shall  resume  her  throne, 
and  the  present  generation  is  swept  into  the  silent 
tomb,  those  who  live  after  us  will  pronounce  a  dread- 
ful judgment  upon  the  chief  actors  in  this  tragedy  of 
blood  and  murder.  As  chief  magistrate  of  this  repub- 
lic, I  owe  your  president,  sir,  much  respect,  still  I  have 
no  oil  of  adulation  to  pour  upon  his  head.  As  the  chief 
of  a  party,  I  turn  from  him  with  instinctive  dread  and 
loathing;  still,  so  prosper  all  my  efforts  here,  I  wish  him' 
no  other  ill,  than  that  he  may  live  long  enough  to  see  his 
errors— to  become  sensible  of  the  miseries  and  afflictions 
he  has  brought  upon  this  abused  people — to  repent  and 
to  reform! 

The  question  of  impressment  was  advantageously  and 


460  Mr.  Hanson's  Speech  on 

honourably  arranged,  in  the  opinion  of  our  ministers. 
Not  a  doubt  is  now  entertained  that  administration  would 
hail  with  joy  a  treaty  similar  to  that  rejected. 

The  second  reason  assigned  by  Mr.  Jefferson  for  re- 
jecting the  treaty,  was,  that  the  English  ministers  reserved 
the  right  of  retaliating  the  Berlin  decree,  if  it  was  not  re- 
sisted by  this  government.   I  say,  without  any  such  re- 
servation, she  would  have  been  perfectly  justifiable  in 
adopting  a  system  of  retaliation,  after  a  reasonable  time 
allowed  this  government  to  resist  that  edict.  But  she  was 
so  anxious  to  leave  this  government  without  a  pretext 
for  discontent,  that  she  would  not  resort  to  the  laws  of 
self  defence  without  due  notice  to  us  collaterally  involved 
by  this  commercial   warfare.   Instead  of  receiving   this 
avowal  of  the  necessity  to  which  England  might  be  re- 
duced, of  inflicting  upon  France  the  evils  of  her  own  in- 
justice, in  the  spirit  in  which  it  was  made,  it  was  another 
reason  with  Mr.  Jefferson  for  rejecting  the  treaty.   And 
here  permit  me  to  say,  that  no  man  of  an  independent 
discriminating  mind,  and  of  sound  judgment,  can  doubt 
the  justice  of  the  British  retaliation. ef  the  Berlin  decree, 
as  far  as  any  neutral  was  concerned,  who  had  acquiesed 
in  that  decree;  otherwise  the  contest  with  France  would 
have  been  most  unequal.  Allies  in  the  disguise  of  neutrals 
could  shield  France,  while  the  breast  of  Britain  was  bared 
to  the  sword  of  her  enemy.  But  it  was  not  for  Mr.  Jeffer- 
son to  become  a   party  by  implication,  as  he  feared  it 
would  be  deemed  in  France,  to  any  plan  of  resisting  the 
great  system  of  commercial  annihilation  commenced  at 
B<  rlin.  No,  Bonaparte's  attitude  at  that  period  was  too 
imposing  to  allow  of  such  rash  counsels  as  implied  an 
attachment  to  commerce,  and  a  determination  to  oppose 
a  barrier  to  French  encroachments.  "  The  great  and  ge- 
nerous Napoleon"  had  just  broken  into  fragments  the 
triple  coalition.    Prussia  struck  down,   and  her  power 


the  Loan  Bill.  461 

broken  to  pieces;  Russia  driven  to  her  frontier,  and  con- 
verted to  an  ally  from  an  enemy;  the  "  supereminent  Na- 
poleon," seated  on  the  throne  of  the  Great  Frederick,  was 
dictating  law  to  the  commercial  world.  The  Berlin  de- 
cree was  the  commencement  of  the  very  system  to  which 
we  are  one  of  the  very  few  parties  left.  It  was  intended  to 
incorporate  into  the  new  commercial  code  the  very  prin- 
ciples which  have  been  contended  for  on  this  floor;  no- 
thing therefore  could  have  been  more  remote  from  Mr. 
Jefferson's  wishes  or  intentions,  than  any  stipulation  which 
looked  like  resistance  to  the  Berlin  decree.  Under  such 
circumstances,  and  at  such  a  time  was  it,  that  the  treaty- 
was  rejected.  At  a  time  when  the  prophets  and  wise  men 
here  talked  familiarly  of  a  national  bankruptcy  in  En- 
gland, or  of  her  speedy  overthrow  by  Bonaparte,  if  a  civil 
war  was  not  produced  by  our  restrictive  energies,  which 
were  driving  the  manufacturers  to  madness  and  despera- 
tion. From  this  time  we  were  gradually  drawn  into  the 
great  continental  confederacy,  the  principles  of  which 
were  sanctified  by  the  decree  of  Berlin.  Now  came  the 
vaunted  treaty  of  Tilsit.  It  was  the  corner  stone  of  the 
immense  fabric  built  upon  the  Berlin  decree.  At  Tilsit 
was  digested  and  methodized  the  grand  scheme  of  com- 
mercial annihilation  commenced  at  the  Prussian  capital, 
not  many  months  previous.  By  enticing  or  forcing  all  the 
states  of  the  continent  into  this  league,  their  ports  were 
to  be  shut  against  British  commerce.  How  far  the  con- 
tinental system  succeeded  among  the  states  of  Europe 
the  world  well  knows.  How  far,  thenceforward,  Mr.  Jef- 
ferson evinced  his  steady  purpose  of  uniting  in  the  war 
upon  commerce,  is  to  be  collected  from  the  acts  of  ad- 
ministration. Tedious  as  I  may  be,  yet  it  is  necessary,  to 
arrive  at  the  results  I  propose,  to  take  a  rapid  view  of 
some  of  the  acts  of  co-operation  with  France,  which  stain 
our  statute  book.  The  Embargo  stands  first  and  pre- 


462  Mr.  Hansorts  Speech  on 

eminent  in  this  black  catalogue.   It  is  notorious,  it  was 
familiarly  talked  of  in  the  Paris  CofFec-Houses.  It  was  a 
topic  of  tete  a  tete  in  the  coteries  of  the  Imperial  metro- 
polis. Our  minister  in  France  gave  warning  of  the  mea- 
sure. Merchants  on  the  continent  wrote  to  their  corres- 
pondents here  to  prepare  for  an  embargo  upon  all  our 
ports.  At  length  despatches  arrived   from  Gen.  Arm- 
strong, and  as  quick  as  the  thunder  succeeds  the  flash 
that  announces  it,  our  ports  were  sealed.  An  embargo  un- 
limited as  to  duration,  and  universal  in  extent,  sat  like 
Incubus  upon  the  land,  blasting  its  best  fruits  more  than 
all  the  congregated  fluids  of  the  heavens  poured  down  at 
once  upon  our  crops.  How  are  we  to  account  for  this 
foreknowledge  in  France  of  measures  to  be  adopted  here? 
How  for  the  decree  promulgated  by  Bonaparte  avowedly 
to  enforce  the  embargo?  There  is  but  one  explanation. 
But  it  is  not  the  least  mortifying  circumstance,  that  while 
the  rays  of  the  great  political  sun  of  Europe  illumined  the 
track  of  merchants  and  speculators  on  the  continent,  our 
poor  outcast  merchants  and  deluded  people  were  left  to 
grope  in  the  dark,  without  a  faint  glimmering  of  light  to 
guide  them.  It  is  enough  to  add,  "  Napoleon  the  Great" 
applauded  the  embargo,  as  a  generous  renunciation  of 
commerce,  rather  than  submit  to  the  shackles  imposed  on  it. 
The  next  important  event,  which  forms  one  of  the  links 
in  the  chain  which  connects  us  with  France,  is  the  grand 
congress  at  Erfurth,  in  Nov.  1808.  There  the  system  of 
commercial  annihilation,  stipulated  at  Tilsit,  was  to  be 
more  completely  organized  and  rendered  universal.  I  do 
not  say,  sir,  we  were  avowedly,  and  in  due  form  repre- 
sented at  that  congress.  But  one  fact  is  established  beyond 
contradiction.  A  Mr.  Short,  whose  name  had  not  been 
heard  before  by  one  man  in  ten  thousand,  was  secretly 
despatched,  via  France,  in  good  season  to  arrive  at  that 
congress.  Although  I  have  always  understood  he  travel- 


the  Loan  BUI.  463 

led  quite  as  rapidly  as  Mr.  Barlow,  who  lost  his  life  by 
dancing  attendance  on  Bonaparte,  I  cannot  say  that  he  ar- 
rived in  time  to  take  his  seat  in  the  general  congress. 
One  thing  is  certain,  if  he  went  upon  any  other  errand  it 
never  has  been  stated,  while  the  appointment  of  the  man, 
and  his  mission,  was,  at  the  time,  as  unknown  to  the  peo- 
ple as  the  "  secrets  of  the  prison  house."  It  is  equally 
certain,  when  he  was  afterwards  nominated  to  the  senate, 
he  was  unanimously  rejected.  His  appointment  was  con- 
trary to  law,  because  there  was  no  vacancy  to  fill  during 
the  recess  of  the  senate.  But  Mr.  Jefferson  had  done  what 
he  wanted,  and  was  not  to  be  put  off  from  his  purpose. 
Disappointed  in  his  man,  he  was  not  to  be  frustrated  in 
his  ultimate  design.  Mr.  Adams  was  therefore  nominated 
minister  to  St.  Petersburgh. — This  son  of  the  father  had 
said,  when  the  embargo  was  recommended \  upon  the  high 
responsibility  of  the  president,  "  the  Senate  should  not 
doubt  or  hesitate."  For  so  noble  a  sentiment  he  must  be 
rewarded,  upon  the  principle  of  buying  off  impatient  and 
hungry  office  seekers.  And  I  do  fear,  we  have  as  yet  had 
only  a  fore-taste  of  the  efficacy  of  this  mode  of  purchasing 
supporters  for  the  administration.  On  Mr.  Adams's  sub- 
ject, I  have  only  to  add,  there  is  a  region  in  Russia  that 
would  be  a  fit  clime  for  a  man  of  such  pliable  patriotism 
and  convenient  principles  to  spend  the  remainder  of  his 
days. 

The  embargo  came  exactly  in  aid  of  the  invasion  of 
Spain.  As  the  legions  of  the  conqueror  were  descending 
into  her  fertile  plains,  like  a  mountain  torrent,  we  did  our 
utmost  to  make  them  the  easy  prey  of  their  invader.  We 
could  do  no  more  than  was  done,  to  say  nothing  of  the 
attempt  to  steal  from  her,  provinces,  while  she  was  strug- 
gling for  self-preservation.  Yet  gentlemen  are  restless, 
and  become  angry  whenever  the  fact  of  the  co-operation 
of  administration  with  France  is  alluded  to.  Sir,  I  will 


464  Mr.  Hansorts  Speech  on 

consent  to  abandon  my  whole  course  of  political  thinking, 
and  to  be  ranged  under  the  court  colours,  on  the  treasury 
bench,  if  it  can  be  shown  in  what  respect  the  policy  of 
administration  has  been  at  variance  with  the  policy  of 
France,  for  six  successive  years.  It  is  a  melancholy,  de- 
grading truth,  that  we  have  followed  her  track  as  faith- 
fully, as  fleetly,  and  as  clamorously  too,  as  the  keen- 
scented,  well-trained  hound  pursues  the  fox.  If  occasional 
deviations  have  occurred,  it  was  only  because  the  trail 
was  lost  through  the  intricacy  of  the  path — but  the  leader 
of  the  pack  soon  got  upon  the  right  scent  again.  His  im- 
perial majesty  has  no  other  ground  of  complaint  against 
us,  except  that  we  have  sometimes  been  thrown  out  in 
the  chase. 

I  mean  not  to  be  understood,  sir,  as  disputing  the  right 
of  the  majority  to  pass  what  laws  they  please,  keeping 
within  the  pale  of  the  constitution — to  form  what  foreign 
leagues  or  alliances  they  see  fit.  But  while  I  admit  that  it 
is  the  "  prerogative  of  the  majority  to  act,  I  maintain  the 
privilege  of  the  minority  to  protest."  I  shall  ever  claim 
and  exercise  the  right  of  showing  by  fair  and  manly  ar- 
gument, the  fact  of  the  co-operation  of  ministers  with 
France,  and  the  baleful  effect  of  such  co-operation. 
When  sir,  your  journals  show  it;  when  your  annals  teem 
with  evidence  of  a  systematic  co-operation  with  France, 
in  all  her  views,  why  are  gentlemen  startled  by  a  refer- 
ence to  the  fact?  Why  do  their  cheeks  mantle  at  the 
charge  of  hating  England,  when  they  do  burn  with  rage 
against  her,  and  admiring  France,  when  they  once  ex- 
pressed that  admiration  as  ardently  as  ever  lover  wooed 
his  paramour,  or  Cleopatra  sighed  for  the  embraces  of  her 
Roman  Antony. 

You  relieved  yourselves  from  the  embargo,  sir,  by  the 
artful  arrangement  of  April,  1809,  made  in  dad  faith  and 
never  intended  here  to  be  carried  into  effect,  even  if  ratiii- 


the  Loan  Bill.  465 

ed  by  England.  Its  ratification  in  London  was  securely- 
guarded  against  by  the  language  in  which  it  was  made. 
But  to  make  the  matter  sure,  as  if  a  double  bond  of  fate 
were  taken,  the  spirit  and  letter  of  the  convention  were 
formally  contravened  by  a  legislative  act,  admitting  equal- 
ly the  vessels  of  war  of  France  and  England  into  our 
waters.  Under  that  act,  too,  the  secretary  of  the  treasury 
issued  a  circular  opening  a  trade  with  France  through 
Holland,  her  dependency,  so  pronounced  subsequently  by 
Bonaparte  himself,  when  he  chose  to  chastise  us  for  that 
arrangement.  This  was  done  in  the  same  spirit  and  with 
the  same  view,  that  Mr.  Madison  interwove  his  invec- 
tives against  the  British  monarch,  into  Mr.  Smith's  letter, 
before  it  was  known  whether  the  arrangement  would  be 
avowed  or  disavowed  in  England. 

The  embargo  being  "  hissed  off  the  stage,"  in  the 
course  of  time,  as  the  able  gentleman  from  Virginia  (Mr. 
Sheffey)  told  you,  the  nation  was  amused  with  "  Macon's 
little  billy  No.  1,  and  little  bill,  No.  2."  It  escaped  the  sa- 
gacity of  the  honourable  gentleman,  that  this  little  bill, 
No.  2,  innocent  and  harmless  as  it  appeared,  contained 
the  seeds  of  this  war.  It  was  intended  to  lay,  and  did  lay 
the  foundation  of  the  famous,  I  should  say  infamous  juggle 
of  the  celebrated  Cadore  letter.  To  enable  the  President 
to  negotiate  with  effect,  it  conferred  upon  him  legislative 
powers — the  power  to  annul  and  re-enact  a  law  of  con- 
gress. Even  in  the  griping  reign  of  Henry  VIII,  of  En- 
gland, when  a  complying  servile  parliament  clothed  that 
monarch  with  legislative  powers,  by  giving  to  his  procla- 
mations the  binding  force  of  law,  the  people  resisted  the 
encroachment.  The  cry  was,  Magna  Charta  is  invaded! 
and  the  voice  of  the  people  prevailed.  The  king  submit- 
ted— not  so  here.  Henry  VIII.  was  a  griping  tyrant,  but 
not  quite  so  stubborn  as  our  master.  Mr.  Madison  clung 
to  his  prerogative  as  legislature  as  well  as  executive,  and 

Vol.  II.  3  N 


466  Mr.  Hanson's  Spe6eh  on 

he  succeeded  in  legislating  the  country  into  a  war.  From 
the  date  of  the  Cadore  letter,  the  government  travelled  on 
step  by  step,  until  the  country  was  completely  enmeshed 
in  the  toils  of  the  usurper.  We  passed  from  non-inter- 
course to  embargo,  and  to  non-importation  upon  non- 
importation, fully  persuaded  that  Great  Britain  had  but  a 
few  short  months  to  survive,  and  hoping  for  the  glory  of 
sharing  the  spoils  with  Napoleon.  Dr.  Franklin  some- 
where remarks,  that  "  we  assemble  parliaments  and  coun- 
cils to  have  the  benefit  of  their  collected  wisdom,  but  at 
the  same  time  we  have  the  inconvenience  of  their  collect- 
ed passions,  prejudices  and  self-interest.  By  the  aid  of 
these,  artful  men  overpower  their  judgment  and  dupe 
their  understandings.  And,  if  we  may  judge  from  their 
edicts,  arrets  and  acts,  all  the  world  over  for  regulating 
commerce,  an  assembly  of  great  men,  is  the  greatest  fool 
on  earth." 

Mr.  Chairman,  as  early  as  1794,  Mr.  Madison  began 
to  impregnate  the  minds  of  those  who  have  since  sup- 
ported him,  with  all  the  absurd  notions  which  now  pre- 
vail of  the  efficacy  of  our  restrictive  energies.  Ever  since 
he  has  been  in  power,  he  has  continued  to  test  his  fa- 
vourite theory  by  lacerating  the  nation  with  a  self  tortur- 
ing suicidal  system,  which  even  to  this  day,  against  all 
experience,  is  persisted  in.  It  will  be  persisted  in  with  an 
obstinacy  proportioned  to  the  greater  importance  of  pre- 
serving Mr.  Madison's  reputation  for  consistency,  to  re- 
lieving the  people  and  preserving  the  union.  Sir,  I  am 
tired,  tired,  sick  of  this  perpetual,  never-ending,  still-be- 
ginning recurrence  to  your  restrictive  energies,  or  in  more 
appropriate  language,  your  anti-commercial  fooleries. 
What  effect  have  they  had  upon  England?  no  more  than 
children's  pop-guns  would  have  upon  the  walls  of  Quebec. 
Gentlemen  now  know,  that  a  non-importation  law  against 
England  is  a  mere  brut  um  fulmen.   How  has  she  regarded 


the  Loan  Bill.  4G7 

your  tremendous  starving,  non-consuming  system,  that 
was  to  drive  her  manufacturers  to  rebellion?  You  have 
not  so  much  as  checked  or  deterred  her  one  moment  in 
the  gigantic  noble  effort  to  liberate  the  enslaved  nations  of 
Europe.  Her  means  of  subsidizing  the  nations,  united  in 
resisting  usurpation  and  tyranny,  have  not  been  in  the 
smallest  degree  diminished.  The  work  of  emancipation 
has  progressed  with  a  steady  and  a  quickened  pace.  The 
glorious  work  of  deliverance  has  now  arrived  at  its  proud 
point  of  consummation,  in  spite  of  all  the  laborious  arti- 
fices here,  to  insure  success  to  tyranny  and  usurpation. 
Feeble,  feeble  indeed  have  been  our  measures  against 
England  and  the  Allies — formidable  and  afflicting  to  our- 
selves! But  even  now,  sir,  now  that  our  cabinet  has  been 
dragged  by  the  collar  to  Gottenburg,  to  sue  for  peace,  if 
they  have  the  good  luck  to  get  a  treaty,  which  happens 
not  to  have  submission  written  in  capitals  on  the 
title  page,  I  have  not  a  doubt,  it  will  be  ascribed  to  the 
magical  efficacy  of  your  restrictive  energies.  So  deep  in 
love  with  this  system,  is  its  authors,  that  even  now,  when 
the  deliverance  of  the  continent  has  opened  so  many  mar- 
kets to  the  British  manufacturer,  that  the  supply  is  too 
small  for  the  demand,  yet  no  doubt,  the  system  will  be 
continued.  Yes,  enlarged,  by  another  non- importation 
law!  And  for  what?  If  for  no  other  reason,  to  hold  out  the 
appearance  that  we  have  not  been  acting  in  concert  with 
France  heretofore,  because  we  continue  the  system  even 
after  it  is  broken  up  on  the  European  continent.  This 
sort  of  management  is  very  well  understood  at  the  palace. 
It  is  to  be  hoped,  however,  that  gentlemen  will  state  the 
reasons  and  objects  at  large,  for  passing  the  non-importa 
tion  law,  which  has  come  down  from  the  senate.  That 
law  too  like  the  bounty  bill  may  be  carried  to  Gottenburg 
in  the  pockets  of  our  ministers,  by  way  of  coercing  En- 
gland! And  when  the  treaty  comes,  "  I  told  you  so!"  will 


468  Mr.  Hanson's  Speech  on 

exclaim  gentlemen;  "  see  what  our  restrictive  energies 
have  done  at  last!"  No  doubt,  sir,  all  the  credit  will  be 
given  to  embargo  and  non-importation,  and  not  to  the  de- 
feat of  Bonaparte:  so  have  gentlemen  succeeded  in  puffing 
this  political  catholicon,  which,  like  all  other  nostrums, 
will  never  stand  in  need  of  a  certifier  to  vouch  for  its  in- 
fallibility. But,  sir,  this  nation  will  not  be  for  ever  the  dupe 
of  quackery  and  imposture.  The  signs  of  the  times  war- 
rant a  belief  that  the  people  in  their  hearts  loathe  these  re- 
strictive nostrums.  The  time  is  not  distant  when  the 
grand  inventor  will  not  only  cheerfully  dispose  of  his  pa- 
tent right,  but  will  strive  hard  to  cast  the  credit  and  glory 
of  his  invention  upon  his  adversaries. 

Sir,  when  we  look  back  upon  the  past,  and  forward  to 
the  future,  I  can  see  no  claim  that  administration  have 
upon  a  single  honest  man  in  the  country  to  support  them 
one  hour  longer  in  their  visionary  schemes  and  impracti- 
cable projects.  I  call  upon  gentlemen  to  lay  their  hands 
upon  their  hearts  and  say,  whether  they  have  performed 
one  promise,  redeemed  one  pledge,  from  their  accession 
to  this  day.  What  good  have  they  done  for  the  country? 
what  mischief  have  they  not  attempted  or  executed?  they 
came  into  power  with  their  mouths  full  of  promises,  and 
are  likely  to  go  out  covered  with  the  curses  of  an  abused 
and  betrayed  people.  To  acknowledge  error,  and  retract, 
is  of  the  highest  order  of  virtue,  but  of  an  altitude  above 
the  reach  of  common  nihids.  We  have  then  nothing  to 
hope  from  acknowledgment  and  retraction.  What,  I  say, 
were  the  leading  professed  principles  of  these  men  when 
they  came  into  power?  Love  of  peace,  aversion  to  con- 
quest, riveted  attachment  to  liberty,  regard  for  economy, 
and  respect  for  the  rights  of  other  nations.  Yes,  sir,  we 
were  to  have  a  millenium  under  democratic  rule.  Federal 
sins  and  abominations  were  to  be  atoned  for  by  the  pious 
and  goodly  works  of  democracy.  This  was  all  very  fine, 


the  Loan  Bill.  469 

while  the  word  of  promise  to  the  ear  was  kept,  but  for  the 
performance  let  the  condition  of  the  country  testify.  To 
describe  it  would  sicken  the  patriot  heart. 

Sir,  as  to  your  restrictive  warfare,  once  more  let  me 
ask,  what  has  it  done  for  you?  You  pledged  all  your  po- 
litical character,  you  staked  all  your  pretensions  as  states- 
men, to  bring  the  proud  monarch  of  the  detested  isle  to 
your  feet  if  the  restrictive  system  were  fairly  tried.  Did 
you  not  try  it  to  your  heart's  content?  for  one  long  and 
unbroken  period  of  eighteen  months?  and  were  you  not 
glad  to  get  rid  of  it  by  a  diplomatic  manoeuvre?  From 
time  to  time,  you  tried  a  variety  of  other  expedients,  all 
eventuating  in  like  failure  and  disgrace.  Laughed  at  and 
ridiculed  at  home,  made  a  bye  word  in  Europe,  you 
were  jeered  and  goaded  into  war.  Yes,  you  went  to  war, 
say  some,  because  the  minority  laughed  at  you,  and.  it 
was  said,  you  could  not  be  "  kicked  into  war."  The 
same  men  now  say,  they  will  make  peace  if  the  minority 
will  let  them,  that  is,  if  they  wont  laugh  at  them  for  giv- 
ing up  all  they  have  been  contending  for.  You  have  tried 
war  just  as  long  as  you  have  tried  embargo,  and  instead 
of  humbling  England,  as  you  promised,  you  have  not 
been  able  even  so  much  as  to  conquer  her  pitiful  little 
province  next  door  to  you.  She  barely  allowed  you  to 
cross  her  threshold,  when  you  were  driven  back,  covered, 
not  with  laurels  and  glory,  but  with  shame  and  disho- 
nour— the  common  fate  of  boasters.  But  how  much  blood 
and  treasure  this  conquest  of  Canada  has  cost,  the  peo- 
ple will  never  be  permitted  to  know.  It  would  not  be 
republican-like  to  tell  them.  They  might  abuse  the  confi- 
dence so  reposed  in  them,  in  a  manner  not  precisely 
according  with  the  views,  and  pleasing  to  the  nice  sensi- 
bilities of  their  rulers.  One  thing  is  certain — you  com- 
menced with  your  tremendous  wonder-working  starving 
system  six  years  ago,  you  tried  it  in  all  its  various  and 


470  Mr.  Hanson 's  Speech  on 

multifarious  forms — and  with  what  effect?  well  nigh  t© 
destroy  yourselves.  You  then  declared  war.  This  was  to 
strike  England  senseless  to  the  ground.  Take  it  alto- 
gether, sir,  most  curiously,  indeed,  have  our  affairs  been 
conducted.  You  have  pursued  the  true  circular  policy. 
Like  a  certain  crawling  animal,  called  the  caterpillar,  or 
like  the  dog  trying  to  catch  his  own  tail,  you  have  gone 
round  and  round  in  a  circle,  without  arriving  an  inch 
nearer  your  point  of  destination.  You  began  in  1807 
with  an  embargo,  and  here  you  are,  in  1814,  with  an 
embargo  again.  Sir,  it  is  time,  high  time,  for  rulers  thus 
proved  to  be  imbecile  and  incompetent — totally  unfit  to 
manage  the  affairs  of  this  people,  either  in  peace  or  in 
war,  to  abandon  the  elevated  stations  which  they  cannot 
fill,  and  to  make  way  for  abler  and  better  men.  Upon 
this  subject  I  beg  not  to  be  mistaken.  Let  it  not  be  sup- 
posed I  would  have  the  incumbents  of  power  to  give  way 
in  our  favour.  If  I  know  any  thing  of  the  views  and  feel- 
ings of  the  honourable  and  virtuous  men  who  compose 
the  party  to  which  I  belong,  they  want  not  power  now; 
nor  would  they  accept  it  under  existing  circumstances, 
unless  to  save  the  country.  No,  sir,  such  is  the  wide 
waste  and  desolation  visible  every  where,  that  no  man 
or  set  of  men,  who  would  undertake  to  repair  these  ra- 
vages, could  preserve  the  people's  favour  longer  than  a 
single  term.  Your  government  is  made  a  perfect  wreck 
— it  is  scarcely  worth  bringing  into  port.  Such  deep  root 
has  corruption  taken  in  this  country,  that  he  who  attempts 
to  restore  the  constitution  to  its  original  purity  and  force 
will  engage  in  a  profitless  pursuit — his  labour  compen- 
sating his  pains.  I  repeat,  no>  sir.  Select  from  your  own 
party,  if  to  be  found,  a  man  of  honour,  talents,  integrity 
and  independent  spirit.  Such  a  man  who  would  be  the 
chief  magistrate  of  this  united  empire,  and  not  the  chief 
of  a  faction,  would  unite  the  confidence  of  all  honest  men. 


the  Loan  Bill  471 

Call  him  by  what  political  name  you  please,  he  would 
receive  the  support  of  all  good  citizens.  Such  a  man,  so 
supported,  might  be  able  to  re-construct  the  dilapidated 
edifice  of  government;  to  rebuild  those  institutions  of 
freedom  that  have  been  so  long  decaying  and  tumbling 
in  ruins  about  us.  We  will  take  power,  sir,  when  the 
people  fly  to  us  for  salvation — when  they  seek  shelter 
from  misery  and  oppression  in  the  wisdom  and  virtue  of 
federal  counsels,  they  will  not  find  us  shrinking  in  the 
hour  of  peril  when  they  fly  from  democracy  as  from 
pestilence,  famine  and  nakedness,  we  will  give  them  food 
and  raiment,  and  healing  medicines.  Thus  much,  sir,  in 
answer  to  the  charge  of  opposing  government  from  a 
desire  to  obtain  power. 

Next,  in  the  long  list  of  measures  of  co-operation  with 
France,  comes  the  declaration  of  war — couched  almost 
in  the  precise  terms  that  Bonaparte  had  declared  war  for 
us,  not  very  long  before — "  war  exists  tjetween  the  Uni- 
ted States  and  Great  Britain,"  &c.  This  measure  was  re- 
solved on,  just  as  Bonaparte  was  invading  Russia.  Hav- 
ing for  a  series  of  years  aided  France  as  far  as  in  our 
power  lay,  in  the  plan  of  stabbing  England  to  the  heart, 
through  her  commerce,  we  now  drew  the  sword  to  des- 
patch her  in  fair  combat. 

Bonaparte's  first  plan  of  conquering  England  was  by 
invasion.  Our  rulers  had  not  the  glory  of  participating 
in  this  grand  enterprise,  which,  when  the  bubble  burst, 
turned  out  a  mere  blind  for  his  designs  against  the  con- 
tinent. After  much  blustering  at  Bologne,  and  prodigal 
waste  of  treasure,  the  flotilla  was  abandoned,  and  the  ty- 
rant entered  upon  the  execution  of  his  vast  scheme  of 
continental  conquest.  This  finesse  of  invasion  was  a  ser- 
vile imitation  of  an  admirable  stroke  of  policy  by  Julius 
Caesar,  who,  meditating  a  blow  nearer  home,  collected  a 
large  flotilla  at  SipontiiTny  Tarentum  and  Brundusium^  as 


472  Mr.  Hanson's  Speeeh  on 

a  feint  against  Spain.  So  also  was  his  celebrated  inter- 
view with  the  emperor  Alexander,  on  the  water,  at  the 
treaty  of  Tilsit,  in  imitation  of  the  meeting  between  Oc- 
tavian,  Young  Pompey  and  Mark  Antony,  in  their  ships 
drawn  up  in  view  of  the  Roman  people,  who  lined  the 
beach  to  witness  this  imposing  spectacle. 

The  plan  of  invasion  abandoned  as  chimerical,  the 
grand  object  of  overthrowing  England  was  to  be  effected 
by  a  fair  contest  for  the  mastery  of  the  seas.  This  second 
farce  was  to  commence  as  soon  as  one  hundred  ships  of 
the  line  were  ready  for  the  exhibition.  Terrible  to  Eng- 
land and  titilating  to  the  republican  sensibilities  of  the 
Napoleonites,  who  joined  in  the  cry  that  "  France  had 
ships  and  we  had  seamen,"  as  this  mighty  navy  project 
was,  it  also  was  abandoned. 

A  new  system  was  now  started,  to  "  conquer  the  free- 
dom of  the  seas"  by  the  destruction  of  commerce.  In 
this  play,  Mr.  Jefferson  had  his  part  assigned  him  in  the 
cast  of  characters.  The  plot  was  simple,  and  to  appear- 
ance happy  and  easy  in  its  execution.  The  reasoning  was 
catching  and  irresistible.  The  navy  of  Great  Britain  con- 
stitutes her  power.  It  is  the  stay  and  prop  of  her  empire; 
the  pillar  of  her  greatness;  the  sheet  anchor  of  her  exis- 
tence; the  great,  and  then  the  only  barrier  to  universal 
despotism.  The  commerce  of  England  maintains  that 
navy.  Annihilate  commerce,  shut  the  ports  of  the  world 
against  her,  and  the  work  is  completed,  the  business  is 
done.  The  props  thus  undermined  and  the  pillars  torn 
away,  the  whole  fabric  of  British  greatness  falls,  and  is 
crushed  to  pieces.  France  succeeds  to  the  dominion  of 
the  seas,  is  resistless  on  the  land,  and  the  enslavement  of 
the  human  family  is  sealed.  I  have  already  shown,  sir, 
how  this  government  systematically  and  faithfully  co- 
operated with  France,  in  her  continental  system. 

Even  now,  Mr.  Chairman,  but  yesterday,  it  was  an- 


the  Loan  Bill,  473 

nounced  here — the  emperor,  cooped  up  in  Paris  like 
Louis  the  Fourteenth,  in  an  address  to  his  senate  of 
slaves,  proclaims  that  the  only  states  that  adhere  to  him 
are  America,  Denmark  and  Naples.  The  two  last,  he 
boasts,  remain  faithful  to  their  alliance,  while  the  United 
States  continue  a  successful  war  against  England!  It  is 
too  true,  sir,  these  vassal  states  excepted,  we  are  the  only 
people  now  ranged  on  the  side  of  France.  We  were  the 
last  to  embark  in  the  great  imperial  ark,  which  has  so 
long  rode  triumphant  on  the  waves  of  despotism.  It  was 
not  the  ark  of  safety,  for  it  has  foundered.  Every  soul  on 
board  is  saved,  or  endeavouring  to  escape  but  us — Poor 
Americans! — people  awake!  abandon  the  wreck,  or  we 
sink  and  perish  in  it.  A  moment's  delay  may  be  fatal. 
While  we  deliberate,  all  may  be  lost.  Dum  deliberamus 
quando  incipiendum,  incipere  jam  serum  fit.  See!  there  is 
but  one  shattered  plank  remaining  between  our  country 
and  the  abyss  below. 

I  had  much  to  say,  upon  the  subject  of  opposition,  and 
the  causes  of  the  decline  and  fall  of  the  ancient  republics, 
a  topic  introduced  on  a  former  occasion,  by  a  gentleman 
from  South  Carolina  (Mr.  Calhoun).  This  would  natu- 
rally lead  to  a  comparison  of  the  character  of  our  oppo- 
sition, and  the  present  situation  of  the  country  which  de- 
mands it,  and  the  character  of  the  opposition  by  the  men 
now  in  power,  and  the  condition  of  the  country  when  we 
were  in  the  majority.  From  such  a  discussion  we  can 
have  no  motive  to  shrink.  It  is  to  be  courted,  and  I  hope 
will  be  pressed  by  others,  so  well  able  to  exhibit  the  con- 
trust  in  striking  colours  to  the  nation.  I  have  not  the 
strength  left  to  trace  the  rise  and  progress  of  parties,  and 
to  compare  their  principles,  professions,  and  actions. 
The  history  of  Genet,  Adet  and  Fauchet — the  attempt 
to  force  Washington  from  his  neutrality — the  clamour 
for  war  in  1794 — the  furious,  desperate  opposition  to 

Vol.  II.  SO 


474  Mr.  Hanson's  Speech  on 

Jay's  treaty — Mr.  Madison's  resolutions,  intended  to  pro- 
duce war — colonel  Monroe's  submission  to  the  French 
directory,  his  recal  and  disgrace — above  all,  the  whiskey 
insurrection,  which  constitute  some  of  the  items  in  the 
account  of  the  character  of  the  opposition  made  to  us 
while  in  power.  I  gladly  turn  from  the  disgusting  pic- 
ture. 

Tedious  and  desultory  as  my  remarks  have  been,  Mr. 
Chairman;  worn  out  as  your  patience  must  be,  and  as  is 
my  strength,  I  must  nevertheless  claim  further  indul- 
gence, while  I  offer  a  few  remarks  upon  the  subject  of  an 
armistice.  As  such  an  event  is  now  ardently  desired, 
certainly  by  the  people,  if  it  is  not  expected  by  govern- 
ment, it  is  proper  to  show  how  administration  has  met 
this  question  on  former  occasions.  So  shall  we  arrive  at 
the  probable  result  of  our  negotiation  for  such  an  object. 
I  mean  to  show,  how  administration  has  made  and  met 
advances  for  an  armistice,  as  it  may  have  an  important 
bearing  on  events  which  will  sooner  or  later  engage  our 
attention. 

Eight  days  after  the  declaration  of  war,  26th  June,  in- 
structions were  sent  to  Mr.  Russell,  from  which  I  ask  the 
indulgence  of  the  house,  while  I  read  an  extract: — "  If 
the  orders  in  council  are  repealed,  and  no  illegal  block- 
ades substituted  to  them,  and  orders  are  given  to  discon- 
tinue the  impressment  of  seamen  [mark!  British  or  noty 
naturalized  or  not)  from  our  vessels,  and  to  restore  those 
already  impressed,  there  is  no  reason  why  hostilities 
should  not  immediately  cease — securing  these  objects, 
you  are  authorized  to  stipulate  an  armistice." 

Such  were  the  conditions  upon  which  a  cessation  of 
hostilities  would  be  consented  to  by  Mr.  Madison.  An 
actual  renunciation  of  the  practice  of  impressment  must 
precede  even  an  armistice.  Great  Britain,  as  a  condition 
pre-requisite  even  to  a  suspension  of  hostilities,   must 


the  Loan  Bill.  475 

relinquish  the  exercise  of  a  practice  which  she  claims  as 
an  essential  right.  It  may  be  thought  impossible  that  our 
government  betrayed  so  much  presumption  and  folly  as 
this  demand  presupposes,  but  let  us  see  how  Mr.  Russell 
understood  and  construed  his  instruction.  In  his  letter  of 
24th  August,  1812,  to  Lord  Castlereagh,  he  says,  "  he  is 
authorized  to  stipulate  with  his  Britannic  majesty's  go- 
vernment an  armistice,  on  condition  that  the  orders  in 
council  be  repealed,  &c.  and  that  orders  are  immediately 
given  to  discontinue  the  impressment  of  persons  (not 
American  citizens*  but  persons,  deserters  or  others)  from 
American  vessels."  In  other  words,  sir,  as  a  condition 
precedent  to  a  suspension  of  arms,  Great  Britain  is,  in  the 
outset  of  the  contest,  to  give  up  every  thing  for  which 
she  has  been  contending,  as  absolutely  as  though  she 
were  beaten  in  battle,  and  conquered.  A  proposition  for 
a  truce  would  neither  be  made  nor  listened  to  by  oup 
haughty,  proud  cabinet,  unless  England  yielded,  surren- 
dered unconditionally,  and  passed  under  the  yoke.  The 
power  of  England  was  considered  still  in  the  wane— our 
imperial  ally  was  yet  in  the  plenitude  of  his  greatness.  I 
need  not  enlarge  upon  this  topic.  Whatever  relates  to  it 
is  now  understood,  and  begins  to  be  felt  by  the  whole 
body  of  people. 

We  may  inquire  impatiently — well!  how  did  Lord 
Castlereagh  answer  this  demand  of  Mr.  Russell,  made  in 
the  language  of  his  instructions?  As  was  expected,  de- 
sired, and  no  doubt  foreknown  by  our  rulers,  if  after  all 
their  experience  they  have  yet  learnt  any  thing  of  the 
English  character.  I  will  read  his  lordship's  reply — "  I 
cannot  refrain  on  one  single  point  from  expressing  my 
surprise,  that  as  a  condition  preliminary  even  to  a  sus- 
pension of  hostilities,  the  United  States  have 
thought  fit  to  demand  that  the  British  government  should 
desist  from  its  ancient  and  accustomed  practice  of  im- 


476  Mr.  Hanson's  Speech  on 

pressing  British  seamen  from  merchant  ships,  simply  on 
the  assurance  that  a  law  shall  hereafter  be  passed,"  &c. 
Thus,  sir,  Mr.  Madison  was  once  more  disappointed  in 
the  attempt  to  extort  from  the  fears  of  England  what  she 
could  not  otherwise  be  induced  to  concede,  as  endanger- 
ing her  existence.  Will  the  same  language  be  held  at 
Gottenburg?  It  depends  upon  another  question — how 
fares  it  with  the  great  belligerents?  will  there  be  a  general 
peace?  have  dissentions  sprung  up  among  the  allies?  is 
the  "  Great  Napoleon"  stripped  of  his  power  and  renown? 
are  we  to  be  no  longer  dazzled  by  the  lustre  of  his  foreign 
conquests? 

But  governor  Prevost  offered  us  an  armistice.  It  was 
instantly  rejected  by  Mr.  Madison.  In  a  letter  from  Mr. 
Monroe  to  Mr.  Russell,  August  21st,  1812,  he  says — 
"  As  a  principal  object  of  the  war  is  to  obtain  redress 
against  the  British  practice  of  impressment,  an  agreement 
to  suspend  hostilities  even  before  the  British  government 
is  heard  from  on  that  subject,  might  be  considered  a  re- 
linquishment of  that  claim.''''  And  yet  Great  Britain  was 
to  relinquish  all  her  claims,  abandon  all  she  contended  for 
to  obtain  a  truce.  This  kind  of  reasoning  at  once  puts  an 
end  to  all  armistices.  An  armistice  implies  submission 
by  neither  party,  nor  the  abandonment  of  any  point. 

Another  correspondence  upon  the  subject  of  an  armis- 
tice took  place  with  admiral  Warren,  showing  on  the  part 
of  Great  Britain  a  continued  desire  for  peace,  on  terms 
honourable  to  both  nations,  and  compatible  with  the  safe- 
ty of  her  people.  As  further  proof  of  the  pretensions  of 
Mr.  Madison,  I  ask  leave  to  read  a  short  extract  from  a 
letter  of  col.  Monroe  to  admiral  Warren — He  says,  "  that 
a  suspension  of  impressment  during  the  armistice  seems 
to  be  a  necessary  consequence.  It  cannot  be  presumed, 
while  the  parties  are  negotiating,  that  the  United  States 


the  Loan  Bill.  477 

would  admit  the  right,  or  acquiesce  in  the  practice  of  the 
opposite  party."  To  remove  all  doubts  of  the  pretensions 
and  demands  of  our  government  which  they  required  to 
be  gratified  before  a  suspension  of  arms  would  be  at.'  reed 
to,  I  will  read  one  more  extract.  It  is  from  the  closing^ 
paragraph  of  Mr.  Monroe's  letter  to  admiral  Warren. 
"  If  there  is  no  objection  to  accommodation  relating  to 
impressment  other  than  the  suspension  of  the  British 
claim  to  impressment  during  the  armistice,  there  can  be 
none  to  proceeding  without  an  armistice  to  the 
discussion  and  arrangement  of  that  subject — The  great 
question  being  satisfactorily  adjusted,  the  way  will  be  open 
to  an  armistice."  First  settle  what  we  are,  or  we  say  we 
are,  fighting  for;  give  up  your  claim  of  impressment;  ac- 
knowledge yourself  in  the  wrong;  concede  what  we  de- 
mand, and  then  we  will  agree  to  a  truce.  In  other  words, 
there  shall  be  no  suspension  of  arms  until  the  objects  of 
the  war  on  our  part  are  fully  obtained  and  completed. 
What  were  we  to  relinquish  in  return  for  such  a  conces- 
sion of  essential  and  vital  importance  to  England?  Com- 
paratively nothing — in  fact  nothing  upon  which  England 
placed  the  value  of  a  farthing.  Will  the  same  tone  be  pre- 
served at  Gottenburg?  How  fares  it  with  the  continent? 
Is  Philip  sick? 

To  agree  now  to  an  armistice,  which  is  not  preceded 
by,  or  does  not  include  an  arrangement  of  the  question 
of  impressment,  upon  terms  consistent  with  former  pre- 
tensions, will  be  submission,  not  on  the  part  of  the  country, 
but  by  Mr.  Madison — It  will  be  hauling  down  the  colours 
of  administration. 

Every  moment,  sir,  that  this  war  has  been  continued 
since  the  armistice  agreed  on  between  governor  Prevost 
and  general  Dearborn,  it  has  been  under  a  new  character, 
whatever  may  be  said  of  its  justice  when  declared.  The 
policy,  necessity,  and  justice  of  the  war  was  a  settled 


478  Mr.  Hanson's  Speech  on 

question  when  the  armistice  was  rejected.  If  ever  just, 
it  became  from  that  moment  unjust,  wanton  and  unne- 
cessary, as  it  has  been  uniformly  ruinous  and  disgrace- 
ful. And  yet,  sir,  defenceless  as  we  are,  our  seaboard 
unprotected,  depending  chiefly  on  the  forbearance  of  the 
enemy,  we  are  invited  to  grant  more  millions  to  be  thrown 
away. 

Upon  the  subject  of  supplies  a  new  doctrine  is  broach- 
ed, nay  has  resounded  in  this  hall.  No  other  than  the 
slavish  oriental  doctrine,  that  we,  the  immediate  represen- 
tatives of  the  people,  are  bound  to  grant  supplies  as  long 
as  his  majesty  and  the  house  of  lords  are  opposed  to  peace. 
Suppose  the  executive  and  senate  shall  see  fit  to  let  their 
treaty  making  power  sleep  for  twenty  years,  are  we  bound 
to  echo  the  sentiments  of  the  two  privileged  estates  of 
the  new  kingdom?  What  is  the  feature  in  the  constitu- 
tion which  gives  this  house  its  weight,  its  importance,  its 
authority?  It  is  the  power  of  the  purse.  It  is  for  us,  like 
the  commons  house  of  parliament  in  England,  to  make 
or  withhold  appropriations.  If  ever  there  was  a  time,  or 
if  ever  a  time  can  arrive  when  this  boasted  prerogative 
should  be  exerted  in  behalf  of  our  suffering  country,  now 
is  that  time,  when  limits  must  be  assigned  to  the  mad 
schemes  of  conquest  and  ambition,  or  the  country  is  ir- 
retrievably lost. 

Gentlemen  bounce  when  our  defenceless  situation  is 
spoken  of.  Why,  sir,  I  have  no  desire  to  render  weaker 
in  public  estimation,  the  public  defence,  nor  to  diminish 
the  resources  of  the  country.  What  the  means  of  defence 
are,  and  what  they  might  and  ought  to  have  been,  are 
topics  worthy  the  consideration  of  the  house.  No  man 
can  deny,  that  a  provident  administration  might  have 
placed  the  country  in  a  situation  to  defy  the  enemy  and 
scorn  his  menaces.  A  tythe,  I  might  almost  say  a  centis- 
mal  part  of  the  treasure  wasted  in  foreign  conquest — in 


the  Loan  Bill.  479 

the  cruel  invasion  of  unoffending  neighbours,  who  were 
ready  ro  sacrifice  every  thing  but  honour  and  security  for 
peace — the  front  and  head  of  whose  offending  was  loyalty 
to  the  government  of  their  choice,  and  resistance  of  all 
attempts  to  seduce  them  from  their  allegiance — of  the 
money  lavished  upon  profligate  court  parasites  and  fa- 
vourites, who  make  politics  an  article  of  traffic — of  the 
money  squandered  in  philosophical  vagaries  of  moon- 
struck empirics — of  the  immense  sums  bestowed  or 
thrown  away  upon  such  objects,  but  a  part  wo-jld  have 
created  a  marine  sufficient  to  meet  the  enemy  upon  the 
proper  element,  and  to  chase  from  our  waters  any  fleet 
he  could  have  conveniemly  sent  here,  No  man  can  deny, 
if  instead  of  bethinking  themselves  solely  of  the  means 
of  obtaining  and  preserving  power,  for  aught  you  or  I 
know,  sir,  to  repair  out  of  the  public  chest  the  ravages 
in  their  patrimonial  estates,  if  they  had  any,  which  idleness 
and  extravagance  had  made — if  instead  of  bargaining 
and  huckstering  for  office,  and  sacrificing  every  thing  at 
the  shrine  of  popularity,  a  liberal  and  enlarged  policy  had 
been  adopted,  emanating  from  generous  bosoms  and  pure 
councils,  and  resting  upon  the  great  foundation  of  all 
public  virtue,  disinterested  love  of  country,  then,  sir,  we 
should  not  have  been  reduced  to  the  despicable  ignomi- 
nious condition  which  makes  the  proud  American  almost 
ashamed  to  own  his  country. 

When  we  look  for  a  moment  at  the  present  situation 
of  our  country,  and  contrast  it  with  the  power,  resources, 
prosperity  and  fortunes  of  England,  it  ought  to  bring 
gentlemen  to  a  pause.  They  should  determine  at  once  to 
travel  no  further  in  the  road  to  ruin,  and  to  retrace  their 
steps.  I  repeat,  we  have  nothing  to  hope,  every  thing  to 
apprehend,  from  a  continuance  of  this  unequal,  ruinous 
contest.  It  must  be  abandoned,  or  its  authors  will  be 
driven  headlong  from  power  by  the  people. 


480  Mr.  Hanson's  Speech  on 

How  much  better  for  the  honour  and  fame  of  our 
rulers,  for  the  glory  and  prosperity  of  the  nation,  would 
it  have  been,  had  their  principles  permitted  them,  to  pur- 
sue the  counterpart  of  the  memorable  example  of  the 
Crown  Prince  of  Sweden.  The  name  of  this  illustrious 
warrior  and  statesman,  was  introduced  in  debate  by  an 
honourable  gentleman  from  North  Carolina  (Mr.  Macon.) 
He  named  a  prince,  sir,  second  only  to  "  Alexander  the 
deliverer"  in  the  glory  of  saving  a  world  from  bondage. 
A  prince,  bound  by  no  natural  ties  to  the  people  whom 
he  governed;  raised  to  that  government  by  the  hand  of 
Bonaparte  himself,  yet  declaring,  that  a  sense  of  honour, 
gratitude  to  a  people  who  had  received  him  into  their 
bosom,  and  a  determination  to  maintain  their  rights 
against  foreign  encroachment,  compelled  him  to  resent 
the  insolence  and  resist  the  violence  of  France.  Berna- 
dotte  would  not  tolerate  the  insolence  of  a  trench  minis- 
ter, who  assumed  towards  him  the  tone  and  port  of  a 
Roman  proconsul  talking  to  his  slaves.  He,  too,  was  by 
turns  wheedled,  flattered,  denounced  and  threatened.  No 
arts  or  menaces  were  unessayed  to  draw  or  force  him 
into  the  French  confederacy.  But  he  preserved  his  inte- 
grity, his  independence  and  honour.  He  did  not  cringe, 
and  bow,  and  coax,  and  in  the  spirit  of  meanness,  "  like 
a  reptile  crawling  on  the  belly,"  entreat  the  tyrant's  inso- 
lent minister  to  take  back  his  insults — or  only  to  erase 
from  the  records  of  his  mission  the  evidence  that  they 
were  given.  He  did  not  send  a  favourite  right  hand  cabi- 
net counsellor  from  Stockholm  to  Gottenburg  to  persuade 
a  French  minister  to  recal  or  modify  his  abuse.  He  did 
not  pick  a  quarrel  with  a  British  minister,  and  dismiss 
him  to  propitiate  the  tyrant  and  soothe  the  anger  of  his 
irritated  minister.  No,  sir,  this  detestable  Crown  Prince, 
now  so  odious  in  the  estimation  of  the  patent  republicans^ 
this  "  traitor"  disdained  to  truckle  to  a  tyrant.  He  would 


the  Loan  Bill.  48 1 

have  cut  off  his  right  arm — he  would  have  laid  his  head 
upon  the  block  and  bled,  as  every  man  of  true  courage 
would  have  done,  in  preference  to  such  a  dastardly  sacri- 
fice of  honour — in  preference  to  such  high  treason  against 
all  that  adorns,  and  exalts,  and  dignifies  individual  and 
national  character.  No,  sir,  "  Bonaparte's  Sergeant"  as 
he  is  now  contemptuously  denominated,  because  he  too 
would  not  be  tied  to  the  imperial  cart-tail  and  consider  it 
a  distinction  to  be  dragged  through  the  same  mire  and 
thorns  that  have  so  beslimed  and  wounded  this  people, 
appealed  to  the  sword,  and  maintained  his  own  honour 
and  the  independence  and  glory  of  Sweden.  No  bribes, 
nor  menaces,  nor  temptations  could  compel  or  seduce 
him  to  adopt  that  fatal  system  of  the  Destroyer  which 
was  the  commencement  of  our  suffering,  and  is  the  con- 
tinuance of  our  degradation. 

How  much  more  solemn  and  impressive  are  the  consi- 
derations which  should  have  found  their  way  to  the  bo- 
soms of  men  elevated  to  the  highest  offices  in  the  gift  of 
a  free  people,  by  the  fair  exercise  of  the  elective  franchise. 
The  Prince  Royal  was  a  stranger,  placed  to  rule  over  a 
people  to  whom  he  was  bound  by  none  of  the  tender  ties 
of  country,  yet  he  set  an  example  of  fidelity  and  attach- 
ment to  the  Swedish  cause,  to  the  great  cause  of  huma- 
nity, for  a  parallel  to  which  we  may  look,  but  look  in 
vain,  into  the  policy  and  measures  of  our  rulers.  We 
must  turn  our  eyes  to'the  vassal  states  of  Europe,  if  we 
search  for  examples  that  have  been  followed  here. 


N.  B.  This  compilation  will  be  continued,  if  sufficient  encourage- 
ment be  given  to  the  publishers. 

Vol.  II.  3  P 


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